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THE NATURE OF THE 
JUDICIAL PROCESS 


THE ADDRESSES CONTAINED IN THIS BOOK WERE 
DELIVERED IN THE WILLIAM L. STORRS 
LECTURE SERIES, 1921, BEFORE THE 
LAW SCHOOL OF YALE UNIVER-~ 
SITY, NEW HAVEN, 
CONNECTICUT 





STORRS LECTURES 


PUBLISHED BY YALE UNIVERSITY PRESS 


THE REFORM OF LEGAL PROCEDURE. By 
Moorfield Storey. 


THE JUDICIARY AND THE PEOPLE. By 
Frederick N. Judson. 


CONCERNING Justice. By Lucilius A. 
Emery. 


WoMAN’sS SUFFRAGE BY CONSTITUTIONAL 
AMENDMENT. By Henry St. George 
Tucker. ; 


Uniform in style with the Storrs Lectures 


INTERNATIONAL ARBITRATION AND PRo- 
CEDURE. By Robert C. Morris, with a 
foreword by President Taft. 


THE NATURE OF THE 
JUDICIAL PROCESS 


BY 
BENJAMIN N. CARDOZO, LL.D. 























Na 




















NEW HAVEN: YALE UNIVERSITY PRESS 
LONDON: HUMPHREY MILFORD 
OXFORD UNIVERSITY PRESS 
MDCCCCXXII 


COPYRIGHT, 1921, 
BY YALE UNIVERSITY PRESS 


Published December, 1921. 
Second Printing, June, 1922. 





IN MEMORIAM 


THIS VOLUME IS PUBLISHED IN MEMORY OF 
ARTHUR P. McKINSTRY 
DIED, NEW YORK CITY, JULY 21, 1921 


Born in Winnebago City, Minnesota, on Decem- 
ber 22, 1881, he was graduated from Yale College 
in 1905, and in 1907 received the degree of 
LL.B. magna cum laude from the Yale Law 
School, graduating at the head of his class. 
Throughout his career at Yale he was noted both 
for his scholarship and for his active interest in 
debating, which won for him first the presidency 
of the Freshman Union and subsequently the 
presidency of the Yale Union. He was also Class 
Orator in 1905, and vice-president of the Yale 
Chapter of Phi Beta Kappa. 

Following his graduation from the School of 
Law he entered upon the practice of his pro- 
fession in New York City and early met with the 
success anticipated for him by his friends,—his 
firm, of which he was the senior member, being 
recognized at the time of his death as among 
the most prominent of the younger firms in the 
city. He was counsel for the Post-Graduate 
Hospital of New York, the Heckscher Founda- 


IN MEMORIAM 


tion for Children, of which he was also a trustee, 
and from 1912 to 1914 served as associate coun- 
sel to the Agency of the United States in the 
American and British Claims Arbitration. By 
his untimely death the bar of the City of New 
York lost a lawyer outstanding for his ability, 
common sense, conscientiousness, and high sense 
of justice; and Yale University lost an alumnus 
of whom she was proud, who gave freely of his 
time and thought to his class of 1905, to the 
development of the Yale School of Law, and to 
the upbuilding of the Yale University Press, 
which he served as counsel. 


Contents 


Lecture I. Introduction. The Method of 
Philosophy Ri NAPS ere Rta Gy" 

Lecture IJ. The Methods of History, 
Tradition and Sociology. . 

Lecture III. The Method of Sociology. 
The Judge as a Legislator . 

Lecture IV. Adherence to Precedent. The 
Subconscious Element in the Judicial 
Process. Conclusion . 


51 


142 





THE NATURE OF THE 
JUDICIAL PROCESS 


Mercrure I. Introduction. The 
Method of Philosophy 


’ \HE work of deciding cases goes on every 


day in hundreds of courts throughout 
the land. Any judge, one might suppose, would 
find it easy to describe the process which he had 
followed a thousand times and more. Nothing 
could be farther from the truth. Let some in- 
telligent layman ask him to explain: he will not 
go very far before taking refuge in the excuse 
that the language of craftsmen is unintelligible 
to those untutored in the craft. Such an excuse 
may cover with a semblance of respectability an 
otherwise ignominious retreat. It will hardly 
serve to still the pricks of curiosity and con- 


science. In moments of introspection, when there 


9 


INTRODUCTION 

is no longer a necessity of putting off with a 
show of wisdom the uniniiatel interlocutor, the 
troublesome problem will recur, and press for a 
solution. What is it that I do when I decide a 
case? To what sources of information do I ap- 
peal for guidance? In what proportions do I 
permit them to contribute to the result? In what 
proportions ought they to contribute? If a prece- 
dent is applicable, when do I refuse to follow it? 
If no precedent is applicable, how do I reach the 
rule that will make a precedent for the future? 
If I am seeking logical consistency, the symmetry 
of the legal structure, how far shall I seek it? At 
what point shall the quest be halted by some 
discrepant custom, by some consideration of the 
social welfare, by my own or the common stand- 
_ards of justice and morals? Into that strange 
compound which is brewed daily in the caldron 
of the courts, all these ingredients enter in vary- 
ing proportions. I am not concerned to inquire 
whether judges ought to be allowed to brew such 
a compound at all. I take judge-made law_ as one 

of the existing realities of life. There, before us, 


IO 


| INTRODUCTION 
is the brew. Not a judge on the bench but has 


had a hand in the making. The elements have not 
come together by chance. Some principle, how- 
ever unavowed and inarticulate and subcon- 
scious, has regulated the infusion. It may not 
‘have been the same principle for all judges at 
any time, nor the same principle for any judge 
at all times. But a choice there has been, not a 
submission to the decree of Fate; and the con- 
siderations and motives determining the choice, 
even if often obscure, do not utterly resist analy- 
sis. In such attempt at analysis as I shall make, 
there will be need to distinguish between the 
conscious and the subconscious. I do not mean 
that even those considerations and motives which — 
I shall class under the first head are always in 
consciousness distinctly, so that they will be 
recognized and named at sight. Not infrequently 
they hover near the surface. They may, however, 
with comparative readiness be isolated and 
tagged, and when thus labeled, are quickly ac- 
knowledged as guiding principles of conduct. 
More subtle are the forces so far beneath the 


II 


INTRODUCTION 


surface that they cannot reasonably be classified 
as other than subconscious. It is often through 
these subconscious a judges are kept 
consistent with themselves, and inconsistent 
with one another. We are reminded by William 
James in a telling page of his lectures on Prag- 
matism that every one of us has in truth an 
underlying philosophy of life, even those of us 
to whom the names and the notions of philosophy 
are unknown or anathema. There is in each of 
us a stream of tendency, whether you choose to 
call it philosophy or not,’ which gives coherence 


and direction to thought and action. Judges can- 


not escape that current any more than other 


mortals. All their lives, forces which they do not 
recognize and cannot name, have been tugging 
at them—inherited instincts, traditional beliefs, 
acquired convictions; and the resultant is an out- 
look on life, a conception of social needs, a sense 
in James’s phrase of “the total push and pressure 
of the cosmos,” which, when reasons are nicely 


balanced, must determine where choice shall fall. 


1Cf. N. M. Butler, “Philosophy,” pp. 18, 43. 


I2 


INTRODUCTION 


In this mental background every problem finds 
its setting. We may try to see things as ob- 
jectively as we ioe | None the less, we can 
never see them with any eyes except our own. 
To that test they are all brought—a form of 
pleading or an act of parliament, the wrongs of 
paupers or the rights of princes, a village or- 
dinance or a nation’s charter. 

fl have little hope that I shall be able to state 
the formula which will rationalize this process for | 
myself, much less for others. We must apply to 
the study of judge-made law that method of 
quantitative analysis which Mr. Wallas has ap- 
plied with such fine results to the study of poli- 
tics.? A richer scholarship than mine is requisite 
to do the work aright. But until that scholarship 
is found and enlists itself in the task, there may 
be a passing interest in an attempt to uncover 
the nature of the process by one who is himself 
an active agent, day by day, in keeping the 
process alive. That must be my apology for 


these introspective searchings of the spirit. 


2“Human Nature in Politics,” p. 138. 


Awe 
ae a a 
ote Sar, 
2 Bei 
ae eae 


Maw ioks 22. Ss 
i 1 4 fan k ua 


®nopuction 


Before we can determine the proportions of a 
blend, we must know the ingredients to be 
blended. Our first inquiry should therefore be: 
( Where does the judge find the law which he, 
' embodies in his judgment? There are times 


when the source is obvious. The rule that fits 


: ‘\ the case may be supplied by the constitution or 


by statute. If that is so, the judge looks no 

farther. The correspondence ascertained, his duty 

is to obey. The constitution overrides a statute, | 
but a statute, if consistent with the constitution, 
overrides the law of judges. In this sense, judge 
made law is secondary and subordinate to the 
law that is made by legislators. It is true that | 
codes and statutes do not render the judge super- 

fluous, nor his work perfunctory and mechanical. 
There are gaps to be filled. There are doubts and. 
ambiguities to be cleared.|\There are hardships 


and wrongs to be mitigated if not avoided. In-\ 





terpretation is often spoken of as if it were noth- 
ing but the search and the discovery of a mean-) 
ing which, however obscure and latent, had none 
the less a real and ascertainable pre-existence in 


14 





IN TRODUCHON 


the legislator’s mind. The process is, indeed, 
that at times, but it is often something more. 
The ascertainment of intention may be the least 


of a judge’s troubles in ascribing meaning to a 


statute. “The fact is,” says Gray in his lectures . 


on the “Nature and Sources of the Law,’ “that 
the difficulties of so-called interpretation arise 
when the legislature has had no meaning at 
all; when the question which is raised on 
the statute never occurred to it; when what 
the judges have to do is, not to determine 
what the legislature did mean on a point which 
was present to its mind, but to guess what it | 
would have intended on a point not present to its 
mind, if the point had been present.”* So Briitt:° 
“One weighty task of the system of the applica- 


tion of law consists then in this, to make more 


eas 


profound the discovery of the latent meaning of 
positive law/ Much more important, however, is 


the second task which the system serves, namely 


8 Sec. 370, p. 165. 

#Cf. Pound, “Courts and Legislation,” 9 Modern 
Legal Philosophy Series, p. 226. 

5“Die Kunst der Rechtsanwendung,” p. 72. 


lead 


T5 


x 


| INTRODUCTION 
) the filling of the gaps which are found in every! 


positive law in greater or less measure.” You may | 
call this process legislation, if you will. In any \ 
event, no system of jus scriptum has been able 
to escape the need of it. Today a great school of 
continental jurists is pleading for a still wider 
freedom of adaptation and construction. The 
statute, they say, is often fragmentary and ill- 
considered and unjust. The judge as the inter- 
preter for the community of its sense of law and 
order must supply omissions, correct uncertain- 
ties, and harmonize results with justice through 
a method of free decision—<“libre recherche 
scientifique.” That is the view of Gény and 
Ehrlich and Gmelin and others.* Courts are to | 


“search for light among the social elements of | 


Tn i na <r, 


every kind that are the living force behind the | 
facts they deal with.’’ The power thus put in 
their hands is great, and subject, like all power, 
to abuse; but we are not to flinch from granting 
it. In the long run “there_is_no guaranty of 


6 “Science of Legal Method,” 9 Modern Legal Philoso- 
phy Series, pp. 4, 45, 65, 72, 124, 130, 159. 
7 Gény, “Méthode d’Interprétation et Sources en droit 


16 


INTRODUCTION 

justice,” says Ehrlich,* “except the n 

of the judge.” The same problem¢ of method, 
the same contrasts between the letter and 
the spirit, are living problems in our own 
land and law. Above all in the field of constitu-_ 
tional law, the method of free decision has be- | 
come, T think, the do dominant tone t today. The great 
generalities of the constitution have a content 
and a significance that vary from age to age. The 
method of free decision sees through the tran- 
sitory particulars and reaches what is permanent 
behind them. Interpretation, thus enlarged, be- 
comes more than the ascertainment of the mean- 
ing and intent of lawmakers whose collective will 
has been declared. It supplements the declara- 
tion, and fills the vacant spaces, by the same 
processes and methods that have built up the ] 
(cary law. Codes and other statutes may 


privé positif,” vol. II, p. 180, sec. 176, ed. 1919; transl. 
9 Modern Legal Philosophy Series, p. 45. 

&P. 65, supra; “Freie Rechtsfindung und freie Rechts- 
wissenschaft,” 9 Modern Legal Philosophy Series. 

9 Cf. Gnaeus Flavius (Kantorowicz), “Der Kampf um 
Rechtswissenschaft,” p. 48: “Von der Kultur des Richters 
hangt im letzten Grunde aller Fortschritt der Rechtsent- 
wicklung ab.” 


17 


INTRODUCTION 
threaten the judicial function with repression 
and disuse and atrophy. The function flourishes 


and persists by virtue of the human need to 


which it steadfastly responds. Justinian’s pro- 


hibition of any commentary on the product of his 
codifiers is remembered only for its futility.*° 

I will dwell no further for the moment upon 
the significance of constitution and statute a: 
sources of the law. The work of a judge in in! 
terpreting and developing them has indeed its 
problems and its difficulties, but they are prob- 
lems and difficulties not different in kind of 
measure from those besetting him in other fields. 
I think they can be better studied when those 
fields have been explored. Sometimes the rule of 
constitution or of statute is clear, and then the 
difficulties vanish. Even when they are present, 


they lack at times some of that element of mys- 


__tery which accompanies creative energy. We 


¥ 
5 
% 
- wt Pa 
e Bon 
OP aad oe a 
F 


statute are silent, and the judge must look 4 


reach the land of Bake when constitution ‘and 


10 Gray, “Nature and Sources of the Law,” sec. 395) 
Muirhead, “Roman Law,” pp. 399, 400. 


8 





INTRODUCTION 


the common law for the rule that fits the case. \ 


He is the “living oracle of the law” in Black- 
stone’s vivid phrase. Looking at Sir Oracle in 
action, viewing his work in the.dry.light of 
-Tealism, how does he set about his task? 

The first thing he does is to compare the case 
before him with the precedents, whether stored 
-in his mind or hidden in the books. I do not mean 
that precedents are ultimate sources of the law, 
supplying the sole equipment that is needed for 
the legal armory, the sole tools, to borrow Mait- 
land’s phrase,** “in the legal smithy.”. Back of 
precedents are the basic juridical conceptions 
which are the postulates of judicial reasoning, 
and farther back are the habits of life, the in- 
stitutions of society, in which those conceptions 
had their origin, and which, by a process of 
interaction, they have modified in turn.*? None 


the less, in a system so highly developed as our 


11 Introduction to Gierke’s “Political Theories of the 
Middle Age,” p. viii. 

12 Saleilles, “De Ia Personnalité Juridique,” p. 45; 
Ehrlich, “Grundlegung der Soziologie des Rechts,” pp. 
34, 35; Pound, “Proceedings of American Bar Assn. 
1910,” p. 455. 


19 


(¥) 


' first step is to examine and compare them. If 


INTRODUCTION 


own, precedents have so covered the ground that 
they fix the point of departure from which the } 
labor of the judge begins. Almost invariably, his 
they are plain and to the point, there may be 
need of nothing more! Stare dectsis is at least the \ 
everyday working rule of our law. I shall have | 
something to say later about the propriety of re- 
laxing the rule in exceptional conditions. But un- | 
less those conditions are present, the work of — 
deciding cases in accordance with precedents that 
plainly fit them is a process similar in its nature © 
to that of deciding cases in accordance with a 
statute. It is a process of search, comparison, and : 
little more. Some judges seldom get beyond that 
process in any case. Their notion of their duty is 
to match the colors of the case at hand against ’ 
the colors of many sample cases spread out upon ! 
their desk. The sample nearest in shade supplies — 
the applicable rule. But, of course, no system of — 


living law can be evolved by such a process, and 


no judge of a high court, worthy of his office, 


views the function of his place so narrowly. If 


20 





INTRODUCTION 


that were all there was to our calling, there would 
be little of intellectual interest about it. The man 
who had the best card index of the cases would 
also be the wisest judge. Tt is when the colors do 


not match, when the references in the index fail, 


when there is no decisive precedent, that the \ 


serious business of the judge begins. He must , 


then fashion law for the litigants before him. In 
fashioning it for them, he will be fashioning it for 
others. The classic statement is Bacon’s: “For 
many times, the things deduced to judgment may 
be meu i and vn when the reason and con- 
sequence thereof may trench to point of estate.”* 
The sentence of today will make the right and 
wrong of tomorrow. If the judge is to pronounce 
it wisely, some principles of selection there must 
be to guide him among all the potential judg- 
ments that compete for recognition. 

In the life of the mind as in life elsewhere, 
there is a tendency toward the reproduction of 
kind. Every judgment has a generative power. 
It begets in its own image. Every precedent, in 

18 “Essay on Judicature.” 


21 


\0 


INTRODUCTION 


the words of Redlich, has a “directive force for 
future cases of the same or similar nature.” 
Until the sentence was pronounced, it was as 
yet in equilibrium. Its form and content were 
uncertain. Any one of many principles might 
lay hold of it and shape it. Once declared, it 
is a new stock of descent. It is charged with 
vital power. It is the source from which new 
principles or norms may spring to shape sen- 
tences thereafter. If we seek the psychological 
basis of this tendency, we shall find it, I suppose, 
in _habit.** Whatever its psychological basis, it is 
one of the living forces of our law. Not all the 
progeny of principles begotten of a judgment sur- 
vive, however, to maturity. Those that cannot 
prove their worth and strength by the test of ex- 
perience, are sacrificed mercilessly and thrown 
_, into the| void. |The common.law. does. not. work 
from pre-established truths of universal and in- 


flexible validity to conclusions derived from them 


14 Redlich, “The Case Method in American Law 
Schools,” Bulletin No. 8, Carnegie Foundation, p. 37. + 

15 McDougall, “Social Psychology,” p. 354; J. C. 
Gray, “Judicial Precedents,” 9 Harvard L. R. 27. 


22 


INTRODUCTION 


deductively. Its method is inductive, and it draws + 
its generalizations from particulars, | The process * 


has been admirably stated by Munroe Smith: “In 
their effort to give to the social sense of justice 
articulate expression in rules and in principles, 
the method of the lawfinding experts has always 
been experimental. The rules and principles of 
case law have never been treated as final truths, 
but as working hypot hypotheses, continually retested in 
those great laboratories of the law, the courts of 
justice. Every new case is an experiment; and if 
the accepted rule which seems applicable yields 
a result which is felt to be unjust, the tule is 
reconsidered. It may not be modified at once, 
for the attempt to do absolute justice in every 
single case would make the development and 
maintenance of general rules impossible; but if 
1 rule continues to work injustice, it will even- 
tually be reformulated. The principles themselves 
are continually retested; for if the rules derived 
from a principle do not work well, the principle 
tself must ultimately be re-examined.”?¢ t 


16 Munroe Smith, “Jurisprudence,” Columbia Uni- 


23 


" 


r 


INTRODUCTION 


The way in which this process of retesting and 
reformulating works, may be followed in an ex- 
ample. Fifty years ago, I think it would have | 
been stated as a general principle that A. may 


conduct his business as he pleases, even though 


the purpose is to cause loss to B., unless the act 


involves the creation of a nuisance.*’ Spite 
fences were the stock illustration, and the exemp- 
tion from liability in such circumstances was 
supposed to illustrate not the exception, but the 
rule.** Such a rule may have been an adequate 


working principle to regulate the relations be- 


tween individuals or classes in a simple or homo- 


\\geneous community. With the growing com- 


——> > 


/ plexity of social relations, its inadequacy was 


. 


\ revealed. As particular controversies multiplied 


and the attempt was made to test them by the 


versity Press, 1909, p. 21; cf. Pound, “Courts and Legis- 
lation,” 7 Am. Pol. Science Rev. 361; 9 Modern Legal 
Philosophy Series, p. 214; Pollock, “Essays in Juris- 
prudence and Ethics,” p. 246. 

17 Cooley, “Torts,” rst ed., p. 93; Pollock, “Torts,” 
roth ed., p. 21. 

18 Phelps v. Nowlen, 72 N. Y. 39; Rideout v. Knox! 
148 Mass. 368. 


24 


> 
ie 1 — 
ne 


INTRODUCTION 


old principle, it was found that there was some- 
thing wrong in the results, and this led to a re- 
formulation of the principle itself. Today, most 
judges are inclined to say that what was once 
thought to be the exception is the rule, and what 
was the rule is the exception. A. may never do 
anything in his business for the purpose of injur- 
ing another without reasonable and just excuse.*° 
There has been a new generalization which, ap- 
plied to new particulars, yields results more in 
harmony with past particulars, and, what is still 
more important, more consistent with the social 
welfare. This work of modification is gradual. It 
goes on inch by inch. Its effects must be measured 
by decades and even centuries. Thus measured, 
they are seen to have behind them the power 
and the pressure of the moving glacier. | 

We are not likely to underrate the force that 
has been exerted if we look back upon its work. 
“There is not a creed which is not shaken, not 


an accredited dogma which is not shown to be 


19 Lamb v. Cheney, 227 N. Y. 418; Aikens v. Wis- 
consin, 195 U. S. 194, 204; Pollock, “Torts,” supra. 


25 


INTRODUCTION 
questionable, not a received tradition which does 
not threaten to dissolve.”*° Those are the words 
of a critic of life and letters writing forty 
years ago, and watching the growing scepticism 
of his day. I am tempted to apply his words to 
the history of the law. Hardly a rule of today 
but may be matched by its opposite of yesterday. 


eel 





Absolute liability for one’s acts is today the 
exception; there must commonly be some tinge 
of fault, whether willful or negligent. Time was, 
however, when absolute liability was the rule. 
Occasional reversions to the earlier type may be 
found in recent legislation.” Mutual promises 
give rise to an obligation, and their breach to a 


right of action for damages. Time was when the 


20 Arnold, “Essays in Criticism,” second series, p. 1. 

21 Holdsworth, “History of English Law,” 2, p. 41; 
Wigmore, “Responsibility for Tortious Acts,” 7 Harvard 
L. R. 315, 383, 441; 3 Anglo-Am. Legal Essays 474; 
Smith, “Liability for Damage to Land,” 33 Harvard 
L. R. 551; Ames, “Law and Morals,” 22 Harvard L. R. 
97, 99; Isaacs, “Fault and Liability,” 31 Harvard L. R. 
954. 

22Cf. Duguit, “LesggTransformations générales du 
droit privé depuis le Napoléon,” Continental Legal 
Hist. Series, vol. XI, pp. I2™ 126, SECS. 40, 42. 


26 


INTRODUCTION | 
obligation and the remedy. were unknown unless 
the promise was under seal.2* ‘Rights of action 
may be assigned, and the buyer prosecute them 
to judgment though he bought for purposes of 
suit. Time was when the assignment was im- 
possible, and the maintenance of the suit a crime. 
It is no basis today for an action of deceit to 
show, without more, that there has been the 
breach of an executory promise; yet the breach 
of an executory promise came to have a remedy 
in our law because it was held to be a deceit.?* 
These changes or most of them have been 
wrought by judges. The men who wrought them 
used the same tools as the judges of today. The 
changes, as they were made in this case or that, 
may not have seemed momentous in the making. 


The result, however, when the process was pro- 
longed throughout the years, has been not merely \ AN 


to supplement or modify; it has been to revolu- ! 


23 Holdsworth, supra, 2, p. 72; Ames, “History of 
Parol Contracts prior to Assumpsit,” 3 Anglo-Am. Legal 
Essays 304. 

24 Holdsworth, supra, 3, pp. 330, 336; Ames, “History 
of Assumpsit,” 3 Anglo-Am. Legal Essays 275, 276. 


27 


INTRODUCTION 


tionize and transform. For every tendency, one 
seems to see a counter-tendency; for every rule 
its antinomy. Nothing is stable’ Nothing ab- 
solute. All_is fluid and changeable. There is an 
endless “becoming.” We are back with Heraclitus. 
That, I mean, is the average or aggregate im- 
pression which the picture leaves upon the mind. 
NY Doubtless in the last three centuries, some lines, 
once wavering, have become rigid. We leave ‘ay 
to legislatures today, and less perhaps to 


pee 


judges. Yet even now ‘there is change from 


decade to decade. The glacier still moves. 


_-¢-» In this perpetual flux, the problem which os 


| fronts the judge is in reality a twofold one: he 


must first extract from the precedents the under-_ 


he. 


x lying principle, the ratio decidendi; he must then 
/ determine the path or direction along which the 
‘\principle is to: move and develop, if it is not to 
wither and die. ~ 

The first branch of the problem is the one to 


which we are accustomed to address ourselves 


| 


25 F. C. Montague in “A Sketch of Legal History,” 


Maitland and Montague, p. 161. 
28 


INTRODUCTION 


more consciously than to the other. Cases do not 
unfold their principles for the asking. They yield 
up their kernel slowly and painfully. The in- 
_ stance cannot lead to a generalization till we 
know it as it is. That in itself is no easy task. 
For the thing adjudged comes to us oftentimes 
swathed in obscuring \dicta,, which must be | 
stripped off and cast aside. Judges differ greatly 
in their reverence for the illustrations and com- 
ments and side-remarks of their predecessors, to 
make no mention of their.own. All agree that 
there may be dissent when the opinion is filed. 
Some would seem to hold that there must be none 
a moment thereafter. Plenary inspiration has 
then descended upon the work of the majority. 
No one, of course, avows such a belief, and yet 
sometimes there is an approach to it in conduct. 
I own that it is a good deal of a mystery to me 
how judges, of all persons in the world, should 
put their faith in dicta. A brief experience on the 
bench was enough to reveal to me all sorts of 
cracks and crevices and loopholes in_my_own. 


opinions when picked up a few months after de- 


29 


tf 


INTRODUCTION 
livery, and reread with due contrition. ‘The per- 
suasion that one’s own infallibility is a myth 
leads. by easy stages and with somewhat greater 
satisfaction to a refusal to ascribe infallibility to 
others. But dicta are not always ticketed as 
such, and one does not recognize them always 
at a glance. There is the constant need, as every 
law student knows, to separate the accidental 
and the non-essential from the essential and in- 
herent. Let us assume, however, that this task | 
has been achieved, and that the precedent is 
known as it really is. Let us assume too that the 
principle, latent within it, has been skillfully ex- 
tracted and accurately stated. Only half or less 
than half of the work has yet been done. The 
problem remains to fix the bounds and the 
tendencies of development and growth, to set 
the directive force in motion along the right path 


at the parting of the ways. 


¢ ‘The directive.force of a principle may be 


exerted along the line of logical progression; 
this I will call the rule of analogy or the method 


a 


act philosophy; along the line of historical .de- 


30 


% THE METHOD OF PHILOSOPHY 
~velopment; this I will call the method of -evolu- \ 
tion; along the line of the customs of.the.com- |. 
munity; this I will call the method ‘of tradition; { 
along the lines of justice, morals and social wel- 
fare, the mores of the day; and this I will call 
the method of sociology.(<| | 
I have put first among the principles of selec- 
tion to guide our choice of paths, the rule of 
analogy or the method of philosophy. In putting 
it first, I do hot mean to rate it as most im- 
portant. On the contrary, it is often sacrificed to 
others. I have put it first because it has, I think, 
a certain presumption in its favor. Given a mass 
of particulars, a congeries of judgments on re- 
lated topics, the principle that unifies and 
rationalizes them hasa tendency, and a legitimate 
one, to project and extend itself to new cases 
within the limits of its capacity to unify and 
rationalize. It has the primacy that comes from 
natural and orderly and logical succession. 
Homage is due to it over every competing prin- 
ciple that is unable by appeal to history or 


tradition or policy or justice to make out a 


31 


THE METHOD OF PHILOSOPHY 
better right. All sorts of deflecting forces may 


appear to contest its sway and absorb its power. 
At least, it is the heir presumptive. A pretender 
to the title will have to fight his way. 

Great judges have sometimes spoken as if 
the principle of philosophy, i.e., of logical de- 
velopment, meant little or nothing in our law. 
Probably none of them in conduct was ever true 
to such a faith. Lord Halsbury said in Quinn v. 
Leathem, 1901, A. C. 495, 506: “A case is only 
an authority for what it actually decides. I en- 
tirely deny that it can be quoted for a proposi- 
tion that may seem to follow logically from it. 
Such a mode of reasoning assumes that the law 
is necessarily a logical code, whereas every 
lawyer must acknowledge that the law is not 
always logical at all.’’?* All this may be true, but 
we must not press the truth too far. Logical 
consistency does not cease to be a good because 


it is not the supreme good. Holmes has told us 


26 Cf. Bailhache, J., in Belfast Ropewalk Co. v. 
Bushell, 1918, 1 K. B. 210, 213: “Unfortunately or 
fortunately, I am not sure which, our law is not a 
science.” 


32 


THE METHOD OF PHILOSOPHY 


in a sentence which is now classic that “the life 
of the law has not been logic; it has been experi- 
ence.”?? But Holmes did not tell us that logic 
is to be ignored when experience is silent. I am 
not to mar the symmetry of the legal structure 
by the introduction of inconsistencies and ir- 
relevancies and artificial exceptions unless for 
some sufficient reason, which will commonly be 
some consideration of history or custom or policy 
or justice. Lacking such a reason, I must be 
logical, just as I must be impartial, and upon 
like grounds. It will not do to decide the same 
question one way between one set of litigants and 
the opposite way between another. “If a group/ 
_of cases involves the same point, the parties ex- 
pect the same decision. It would be a gross in- 
justice to decide alternate cases on opposite 
principles. If a case was decided against me 
yesterday when I was defendant, I shall look for 
the same judgment today if I am plaintiff. To 
decide differently would raise a feeling of Rac 


ment and wrong in my breast; it would be an | 


27 “The Common Law,” p. 1. 


33 


THE METHOD OF PHILOSOPHY 


infringement, material and moral, of myrights.””° 
Everyone feels the force of this sentiment when 
two cases are the same. ‘Adherence to precedent 
must then be the rule rather than the exception 
if litigants are to have faith in the even-handed 
administration of justice in the courts; A senti- 
ment like in kind, though different in degree, is 
at the root of the tendency of precedent to ex- 
tend itself along the lines of logical develop- 
ment.”° No doubt the sentiment is powerfully 
reinforced by what is often nothing but an in- 
tellectual passion for elegantia juris, for sym- 
metry of form and substance.*° That is an ideal 
which can never fail to exert some measure of 
attraction upon the professional experts who — 
make up the lawyer class. To the Roman law- 
yers, it meant much, more than it has meant 


to English lawyers or to ours, certainly more 


-28W. G. Miller, “The Data of Jurisprudence,” p. 
335; cf. Gray, “Nature and Sources of the Law,” sec. 
420; Salmond, “Jurisprudence,” p. 170. 

29 Cf. Gény, “Méthode d’interprétation et Sources 
en droit privé positif,” vol. II, p. 119. ’ 
30W. G. Miller, supra, p. 281; Bryce, “Studies in 

History and Jurisprudence,” vol. II, p. 629. 


34 


THE METHOD OF PHILOSOPHY 
than it has meant to clients. “The client,” 
says Miller in his “Data of Jurisprudence,”* 
“cares little for a ‘beautiful’ case! He wishes: 
it settled somehow on the most favorable terms 
he can obtain.” Even that is not always true. But 
as a system of case law develops, the sordid 
controversies of litigants are the stuff out of 
which great and shining truths will ultimately. 
be shaped. The accidental and the transitory will 
yield the essential and the permanent. The judge 
who moulds the law by the method of philosophy 
may be satisfying an intellectual craving for 
symmetry of form and substance. But he is doing 
something more. He is keeping the-law-true in 
its response to a deep-seated and imperious senti- 
nent, nly experts perhaps may be able to gauge 
‘the quality of his work and appraise its signifi- 
cance. But their judgment, the judgment of the 
lawyer class, will spread to others, and tinge the 
common consciousness and the common faith. 
In default of other tests, the method of philoso- 


phy must remain the organon of the courts if 
: neh P. tT. | 


35 


THE METHOD OF PHILOSOPHY 


chance and favor are to be excluded, and the 
affairs of men are to be governed with the serene 
and impartial uniformity which is of the essence 
of the idea of law. 

You will say that there is an intolerable vague- 
ness in all this. If the method of philosophy is 
to be employed in the absence of a better one, 
some test of comparative fitness should be fur- 
nished. I hope, before I have ended, to sketch, 
though only in the broadest outline, the funda- 
mental considerations by which the choice of 
methods should be governed. In the nature of 
things they can never be catalogued with preci- 
sion. Much must be left to that deftness in the 
use of tools which the practice of an art develops. 
A few hints, a few suggestions, the rest must be 
trusted to the feeling of the artist. But for the 
moment, I am satisfied to establish the method 
of philosophy as one organon among several, 
leaving the choice of one or the other to be 
talked of later. Very likely I have labored unduly 
to establish its title to a place so modest. Above 
all, in the Law School of Yale University, the 

36 : 


THE METHOD OF PHILOSOPHY 
title will not, be challenged. I say that because 


in the work of a brilliant teacher of this school, 
the late Wesley Newcomb Hohfeld, I find im- | 
pressive recognition of the importance of this 
method, when kept within due limits, and some 
- of the happiest illustrations of its legitimate em- 
ployment. His treatise on ““Fundamental Concep- 
tions Applied in Judicial Reasoning” is in reality 
a plea that fundamental conceptions be analyzed 
more clearly, and their philosophical implica- 
tions, their logical conclusions, developed more 
consistently. I do not mean to represent him as 
holding to the view that logical conclusions must 
always follow the conceptions developed by 
analysis. ‘“No one saw more clearly than he that 
while the analytical matter is an indispensable 
tool, it is not an all-sufficient one for the law- 
yer.”*? “Fle emphasized over and over again” 
that “analytical work merely paves the way for 
other branches of jurisprudence, and that with- 


out the aid of the latter, satisfactory solutions of 


82 Introduction to Hohfeld’s Treatise by W. W. 
Cook. 


37 


THE METHOD OF PHILOSOPHY 


legal problems cannot be reached.”** We must — 
know where logic and philosophy lead even 
though we may determine to abandon them for 
other guides. The times will be many when we 
can do no better than follow where they point. 

Example, if not better than precept, may at 
least prove to be easier. We may get some sense 
of the class of questions to which a method is 
adapted when we have studied the class of ques- 
tions to which it has ‘been applied. Let me — 
give some haphazard illustrations of conclusions 
adopted by our law through the development of 
legal conceptions to logical conclusions. A. agrees 
to sell a chattel to B. Before title passes, the 
chattel is destroyed. The loss falls on the seller 
who has sued at law for the price.** A. agrees 
to sell a house and lot. Before title passes, the 
house is destroyed. The seller sues in equity for 
specific performance. The loss falls upon the 

83 Professor Cook’s Introduction. 

34 Higgins v. Murray, 73 N. Y. 252, 254; 2 Williston 


on Contracts, sec. 962; N. Y. Personal Prop. Law, sec. 
1038. 


38 


THE METHOD OF PHILOSOPHY 
buyer.** That is probably the prevailing view, 


though its wisdom has been sharply criticized.** 
These variant conclusions are not dictated by 
variant considerations of policy or justice. They 
are projections of a principle to its logical out- 
come, or the outcome supposed to be logical. 
Equity treats that as done which ought to be 
done. Contracts for the sale of land, unlike most 
contracts for the sale of chattels, are within the 
jurisdiction of equity. The vendee is in equity 
the owner from the beginning. Therefore, the 
burdens as well as the benefits of ownership 
shall be his. Let me take as another illustration 
of my meaning the cases which define the rights 
of assignees of choses in action. In the discussion 
of these cases, you will find much conflict of 
opinion about fundamental conceptions. Some 
tell us that the assignee has a legal ownership.*” 


Others say that his right is purely equitable.*® 


35 Paine v. Meller, 6 Ves. 349, 352; Sewell v. Under- 
hill, 197 N. Y. 168; 2 Williston on Contracts, sec. 931. 

86 2 Williston on Contracts, sec. 940. 

87 Cook, 29 Harvard L. R. 816, 836. 

88 Williston, 30 Harvard L. R. 97; 31 ibid. 822. 


39 


THE METHOD OF PHILOSOPHY 


Given, however, the fundamental conception, all 
agree in deducing its consequences by methods 
in which the preponderating element is the 
method of philosophy. We may find kindred 
illustrations in the law of trusts and contracts 
and in many other fields. It would be wearisome 
to accumulate them. 

The directive force of logic does not_always 
exert itself, however, along a single and unob- 
structed.path. One principle or precedent, pushed 
to the limit of its logic, may point to one con- 
clusion; another principle or precedent, followed 
with like logic, may point with equal certainty to 
another. In this conflict, we must choose between 
the two.paths, selecting one or other, or per- 
haps striking out upon a third, which will be the 
resultant of the two forces in combination, or will 
represent the mean between extremes. ; Let me 
take as an illustration of such conflict the famous 
case of Riggs v. Palmer, 115 N. Y. 506. That 
case decided that a legatee who had murdered 


his testator would not be permitted by a court 


of equity to enjoy the benefits of the will. Con- 


40 


THE METHOD OF PHILOSOPHY 


flicting principles were there in competition for 
the mastery. One of them prevailed, and van- 
quished all the others. There was the principle 
of the binding force of a will disposing of the 
estate of a testator in conformity with law. That 
_ principle, pushed to the limit of its logic, seemed 
to uphold the title of the murderer. There was 
the principle that civil courts may not add to 
the pains and penalties of crimes. That, pushed 
to the limit of its logic, seemed again to uphold 
his title. But over against these was another 
principle, of greater generality, its roots deeply 
fastened in universal sentiments of justice, the 
principle that no man should profit from his own 
inequity or take advantage of his own wrong. 
The logic of this principle prevailed over the 
logic of the others. I say its logic prevailed. The 
thing which really interests us, however, is why 
and how the choice was made between one logic 
and another. In this instance, the reason is not 
obscure. One path was followed, another closed, 
because of the conviction in the judicial mind 
that the one selected led to justice, Analogies and 
4I 


THE METHOD OF PHILOSOPHY 


precedents and the principles behind them were 
brought together as rivals for precedence; in the 
end, the principle that was thought to be most 
fundamental, to represent the larger and deeper 
social interests, put its competitors to flight. I 
am not greatly concerned about the particular 
formula through which justice was attained. 
Consistency was preserved, logic received its 
tribute, by holding that the legal title passed, but 
that it was subjected to a constructive trust.*® 
A constructive trust is nothing but “the formula 
through which the conscience of equity finds ex- 
pression.”*° Property is acquired in such cir- 
cumstances that the holder of the legal title may 
not in good conscience retain the beneficial in- 
terest. Equity, to express its disapproval of his 
conduct, converts him into a trustee.*+ Such 
formulas are merely the remedial devices by 
which a result conceived of as right and just is 


39 Ellerson v. Westcott, 148 N. Y. 149, 154; Ames, 
“Lectures on Legal History,” pp. 313, 314. 

40 Beatty v. Guggenheim Exploration Co., 225 N. Y. 
380, 386. 

41 Beatty v. Guggenheim Exploration Co., supra; 


Ames, supra. 


42 


THE METHOD OF PHILOSOPHY 


made to square with principle and with the sym- 
metry of the legal system. What concerns me now 
is not the remedial device, but rather the under- ’ 
lying motive, the indwelling, creative energy, 
which brings such devices into play. The mur- 
_ derer lost the legacy for which the murder was 
committed because the social interest served by 
erusine to permit the cfiminal to profit by his 
crime is greater than that served by the preserva- 
tion and enforcement of legal rights of ownership. 
_ My illustration, indeed, has brought me ahead 
of my story. The judicial process is there in 
microcosm. We go forward with our’ logic, with 
our analogies, with our philosophies, till we reach 
a certain point. At first, we have no trouble with 
the paths; they follow the same lines. Then they 
begin to diverge, and we must make a choice be- 
tween them. History or custom. or social_utility 
or some compelling sentiment.of justice or.some- 
‘times_perhaps.a semi-intuitive. apprehension. of 
the pervading spirit.of our.law, must come to the 
rescue of the anxious.judge, and tell him where 
to go. 
: 43 


THE METHOD OF PHILOSOPHY 


It is easy to accumulate examples of the 
process—of the constant checking and testing of 
philosophy by justice, and of justice by philoso- \ 
phy. Take the rule which permits recovery with 
compensation for defects in cases of substantial, 
though incomplete performance. We have often 
applied it for the protection of builders who in 
trifling details and without evil purpose have de- 
parted from their contracts. The courts had 
some trouble for a time, when they were deciding 
such cases, to square their justice with their logic. 
Even now, an uneasy feeling betrays itself in 
treatise and decision that the two fabrics do not 
fit. As I had occasion to say in a recent case: 
“Those who think more of symmetry and logic 
in the development of legal rules than of practi- 
cal adaptation to the attainment of a just result” 
remain “troubled by a classification where the 
lines of division are so wavering and blurred.’’*? 
I have no doubt that the inspiration of the rule 
is a mere sentiment of justice. That sentiment 
asserting itself, we have proceeded to surround it 

42 Jacobs & Youngs, Inc. v. Kent, 230 N. Y. 239. 

44 


THE METHOD OF PHILOSOPHY 
with the halo of conformity to precedent. Some 
judges saw the unifying principle in the law of 
quasi:contracts. Others saw it in the distinction 
between dependent and independent promises, or 
between promises and conditions. All found, how- 
ever, in the end that there was a principle in the 
legal armory which, when taken down from the 
wall where it was rusting, was capable of furnish- 
ing a weapon for the fight and of hewing a path 
to justice. Justice reacted upon logic, sentiment 
upon reason, by guiding the choice to be made 
between one logic and another. Reason in its 
turn reacted upon s‘ntiment by purging it of 
what is arbitrary, by checking it when it might 
otherwise have been extravagant, by relating it 
to method and order and coherence and tradi- 
tion.** 

In this conception of the method of logic or 
philosophy as one organon among several, I find 
nothing hostile to the teachings of continental 
‘ jurists who would dethrone it from its place and 

43 Cf. Hynes v. N. Y. Central R. R. Co. (231 N. Y. 
2209, 235). 

45 


THE METHOD OF PHILOSOPHY 


power in systems of jurisprudence other than our 
own. They have combated an evil which has 
touched the common law only here and there, 
and lightly. I do not mean that there are not 
fields where we have stood in need of the same 
lesson. In some part, however, we have been 
saved by the inductive process through which our 
case law has developed from evils and dangers 
inseparable from the development of Jaw, upon 
the basis of the jus scriptum, by a process of 
deduction.*t Yet even continental jurists who 
emphasize the need of other methods, do not ask 
us to abstract from lega, principles all their 
fructifying power. The misuse of logic or philoso- 
phy begins when its method and its ends are 
treated as supreme and final. They can never be 
banished altogether. “Assuredly,” says Francois 
Gény,*° “there should be no question of banish- 
ing ratiocination and logical methods from the 


44 “Notre droit public, comme notre droit privé, est 
un jus scriptum” (Michoud, “La Responsibilité de l'état 
& raison des fautes de ses agents,” Revue du droit 
public, 1895, p. 273, quoted by Gény, vol. I, p. 40, 
sec. 19). 

45° Op. ‘cit. VOL. 1, p.- 8275 Secs ee ~ 


46 


THE METHOD OF PHILOSOPHY 


science of positive law.” Even general principles 
may sometimes be followed rigorously in the de- 
duction of their consequences. “The abuse,” he 
says, “consists, if I do not mistake, in envisaging 
ideal conceptions, provisional and purely sub- 
_ jective in their nature, as endowed with a per- 
manent objective reality. And this false point of 
view, which, to my thinking, is a vestige of the 
absolute realism of the middle ages, ends in con- 
fining the entire system of positive law, @ priori, 
within a limited number of logical categories, 
which are predetermined in essence, immovable 
in basis, governed by inflexible dogmas, and thus 
incapable of adapting themselves to the ever 
varied and changing exigencies of life.” 

In law, as in every other branch of knowl- 
edge, the truths.given by induction tend to form 
the premises for new deductions. The lawyers 
and the judges of successive generations do not 
repeat for themselves the process of verification, 
any more than most of us repeat the demonstra- _ 
tions of the truths of astronomy or physics. A 


stock of juridical conceptions and formulas is 


47 


THE METHOD OF PHILOSOPHY 


developed, and we take them, so to speak, ready- 
made. Such fundamental conceptions as contract 
and possession and ownership and testament and 
many others, are there, ready for use. How they 
came to be there, I do not need to inquire. I am 
writing, not a history of the evolution of law, 
but a sketch of the judicial process applied to 
law full grown. These fundamental conceptions 
once attained form the starting point from which 
are derived new consequences, which, at first 
tentative and groping, gain by reiteration a new 
permanence and certainty. In the end, they be- 
come accepted themselves as fundamental an 
axiomatic. So it is with the growth from ea 
dent to precedent. The implications of a decision 
may in the beginning be equivocal. New cases 
by commentary and exposition extract the es- 
sence. At last there emerges a rule or principle 
which becomes a datum, a point of departure, © 
from which new lines will be run, from which 
new courses will be measured. Sometimes the rule 
or principle is found to have been formulated too 
narrowly or too broadly, and has to be reframed. 


48 


THE METHOD OF PHILOSOPHY 


Sometimes it is accepted as a postulate of later 
reasoning, its origins are forgotten, it becomes a 
new stock of descent, its issue unite with other 
strains, and persisting permeate the law. You 
may call the process one of analogy or of logic 
or of philosophy as you please.\Its essence in any 
event is the derivation of a consequence from a 
rule or a principle or a precedent which, accepted 
as a datum, contains implicitly within itself the 
germ of the conclusion) In all this, I do not use 
the word philosophy in any strict or formal 
sense. The method tapers down from the syllo- 
gism at one end to mere analogy at the other. » 
Sometimes the extension of a precedent goes to 
the limit of its logic. Sometimes it does not go so 
far. Sometimes by a process of analogy it is 
carried even farther. That is a tool which no 
system of jurisprudence has been able to dis- 
card.*® A rule which has worked well in one field, 
or which, in any event, is there whether its work- 
ings have been revealed or not, is carried over 
into another. Instances of such a process I group 
46 Ehrlich, “Die Juristische Logik,” pp. 225, 227. 
49 


THE METHOD OF PHILOSOPHY 


under the same heading as those where the nexus 
of logic is closer and more binding.*” At bottom 
and in their underlying motives, they are phases 
of the same method. They are inspired by the 
same yearning for consistency, for certainty, 
for uniformity of plan and structure. They have 
their roots in the constant striving of the mind 
for a larger and more inclusive unity, in which 
differences will be reconciled, and abnormalities 
will vanish. | 

47 Cf, Gény, op. cit., vol. II, p. raz, sec. 165; also 
vol. I, p. 304, sec. 107. 


50 


a 


Lecture II. The Methods of 
History, Tradition and 
Sociology 


Y \HE method of philosophy comes in com- 


petition, however, with other tendencies 
which find their outlet in other methods. One of 
these is the historical method, or the method of 
evolution. The tendency of a principle to expand 
itself to the limit of its logic may be counteracted 
by the tendency to confine itself within the 
limits of its history. I do not mean that even 
then the two methods are always in opposition. 
A classification which treats them as distinct is, 
doubtless, subject to the reproach that it involves 
a certain overlapping of the lines and principles 
of division. Very often, the effect of history is 
to make the path of logic clear." Growth may(™ 
be logical whether it is shaped by the principle 


1Cf, Holmes, “The Path of the Law,” 10 Harvard 
L. R. 465. 


51 


HISTORY, TRADITION AND SOCIOLOGY 


of consistency with the past or by that of con- 
sistency with some pre-established norm, some 
general conception, some “indwelling, and creative 
principle.”? The directive force of the precedent 
may be found either in the events that made 
it what it is, or in some principle which enables 
us to say of it that it is what it ought to be. 
Development may involve either an investigation 
of origins, or an ‘eliort ) of ‘pure reason. Both 
methods have their logic. For the moment, how- 
ever, it will be convenient to identify the method 
of history with the one, and to confine the 
method of logic or philosophy to the other. Some 
conceptions of the law owe their existing form 
almost exclusively to history. They are not to 
be understood except as historical growths. In the 
development of such principles, history is likely 
to predominate over logic or pure reason. Other 
conceptions, though they have, of course, a his- 
tory, have taken form and shape to a larger 
extent under the influence of reason or of com- 

2 Bryce, “Studies in History and Jurisprudence,” vol. 
II, p. 609. 

52 


HISTORY, TRADITION AND SOCIOLOGY 


parative jurisprudence. They are part of the jus 
gentium. In the development of such principles 
logic is likely to predominate over history. An 
illustration is the conception of juristic or cor- 
porate personality with the long train of conse- 
quences which that conception has engendered. 
(Sometimes 1 the subject matter will lend itself as 
naturally to one method as to another. In such 
circumstances, considerations of custom or utility 
will often be present to regulate the choice. A re- 
siduum will be left where the personality of the 
judge, his taste, his training or his bent of mind, 
may prove the controlling factor./I do not mean 
that the directive force of history, even where 
its claims are most.assertive; confines.the law. of 
the future to uninspired repetition of. the law 
of the present and the.past. I mean simply that 
history, in illuminating the past, illuminates the 


present, and in illuminating the present, illu- 


minates the future. / “If at one time it seemed “~ 


likely,” says Maitland,* “that the historical spirit 
(the spirit which strove to understand the classi- 
3 “Collected Papers,” vol. III, p. 438. 
53 


HISTORY, TRADITION AND SOCIOLOGY 


cal jurisprudence of Rome and the Twelve 
Tables, and the Lex Salica, and law of all ages 
and climes) was fatalistic and inimical to reform, 
that time already lies in the past. . . . Nowadays 
we may see the office of historical research as that 
of explaining, and therefore lightening, the pres- 
sure that the past must exercise upon the present, 
and the present upon the future. Today we study 
the day before yesterday, in order that yesterday 
may not paralyze today, and today may not 


paralyze tomorrow.” 


”™” Let me speak first of those fields where there 


can be no progress without history. I think th 
law of real property supplies the readiest ex+ 
ample.* No lawgiver meditating a code of law: 
conceived the system of feudal tenures. Histo 
built up the system and the law that went with 
it. Never by a process of logical deduction from 
the idea of abstract ownership could we distin- 
guish the incidents of an estate in fee simple from 
those of an estate for life, or those of an estate 


for life from those of an estate for years. Upon 


*Techt v. Hughes, 229 N. Y. 222, 240. 
54 


HISTORY, TRADITION AND SOCIOLOGY 


these points, “a page of history is worth a volume 
of logic.”" So it is wherever we turn in the forest 
of the law of land. Restraints upon alienation, 
the suspension of absolute ownership, contingent 
remainders, executory devises, private trusts and 
_ trusts for charities, all these heads of the law are 
intelligible only in the light of history, and get 
from history the impetus which must shape their 
subsequent development. I do not mean that even 
in this field, the method of philosophy plays no 
part at all. Some of the conceptions of the land 
law, once fixed, are pushed to their logical con- 
clusions with inexorable severity. The point is 
rather that the conceptions themselves have come 
to us from without and not from within, that they 
embody the thought, not so much of the present 
as of the past, that separated from the past their 
form and meaning are unintelligible and arbi- 
trary, and hence that their development, in 
order to be truly logical, must be mindful of their 
origins. ‘In a measure that i is true of most of the 

5 Holmes, J., in N. Y. Trust Co. v. Eisner, 256 U. S. 
345, 349. 

55 


Wie, 


HISTORY, TRADITION AND SOCIOLOGY 


conceptions of our law. Metaphysical principles 
have seldom been their life. If I emphasize the 
law of real estate, it is merely as a conspicuous 
example. Other illustrations, even though less 
conspicuous, abound. “The forms of action we 
have buried” says Maitland,°® “but they still rule 
us from their graves.” Holmes has the same 
thought:* “If we consider the law of contract,” 
he says, “we find it full of history. The distinc- 
tions between debt, covenant and assumpsit are 
merely historical. The classification of certain 
obligations to pay money, imposed by the law 
irrespective of any bargain as quasi-contracts, is 
merely historical. The doctrine of consideration 
is merely historical. The effect given to a seal is 
to be explained by history alone.” The powers 
and functions of an executor, the distinctions be- 
‘tween larceny and embezzlement, the rules of 
venue and the jurisdiction over foreign trespass, 
these are a few haphazard illustrations of growths 


which history has fostered, and which history 


6 “Equity and Forms of Action,” p. 296. 
7™“The Path of the Law,” 10 Harvard L. R. 472. 


56 


HISTORY, TRADITION AND SOCIOLOGY 


must tend to shape. There are times when the 
subject matter lends itself almost indifferently to 
the application of one method or another, and the 
predilection or training of the judge determines 
the choice of paths. The subject has been pene- 
tratingly discussed by Pound.* I borrow one of 


his illustrations. Is a gift ofmovables inter vivos 







effective without ry? The controversy raged 
rs before it was set at rest. Some 
judges relied on the analogy of the Roman Law. 
Others upon the history of forms of conveyance 
in our law. With some, it was the analysis of 
fundamental conceptions, followed by the ex- 
tension of the results of analysis to logical con- 
clusions. The declared will to give and to accept 
was to have that effect and no more which was 
consistent with some pre-established definition 
of a legal transaction, an act in the law. With 
others, the central thought was not consistency 
with a conception, the consideration of what 
logically ought to be done, but rather consistency 

8 “Juristic Science and the Law,” 31 Harvard L. R. 
1047. 

57 


HISTORY, TRADITION AND SOCIOLOGY 


with history, the consideration of what had been 
done. I think the opinions in Lumley v. Gye, 
2 El. & Bl. 216, which established a right of 
action against A. for malicious interference with 
a contract between B. and C., exhibit the same 
divergent strains, the same variance in emphasis. 
Often, the two methods supplement each other. 
Which method will predominate in any case, 
may depend at times upon intuitions of con- 
venience or fitness too subtle to be formulated, 
too imponderable to be valued, too volatile to 
be localized or even fully apprehended. Some- 
times the prevailing tendencies exhibited in the 
current writings of philosophical jurists may 
sway the balance. There are vogues and fashions 
in jurisprudence as in literature and art and 
dress. But of this there will be more to say when 
we deal with the forces that work subconsciously 
in the shaping of the law. 

_self history and philosophy do not serve to fix 


a the direction of a principle, custom may step in. 


When we speak of custom, we may mean more 
things than one. “Consuetudo,” says Coke, “is 
fin | 


*% 


HISTORY, TRADITION AND SOCIOLOGY 


one of the maine triangles of the lawes of Eng- 
land; these lawes being divided into common 
law, statute law and customs.’® Here common 
law and custom are thought of as distinct. 
Not so, however, Blackstone: “This unwritten 
or Common Law is properly nm EH 
into three kinds: (1) General customs, which 
are the universal rule of the whole Kingdom, ' 
-and form the Common Law, in its stricter 
and more usual signification. (2) Particular cus- 
toms, which for the most part affect only the 
inhabitants of particular districts. (3) Certain 
particular laws, which by custom ‘are adopted 
and used by some particular courts of pretty 
general and extensive jurisdiction.’ 
Undoubtedly the creative energy Pain in 
the development of common law is less today 


than it was in bygone times.** Even in bygone 


® Coke on Littleton, 62a; Post v. Pearsall, 22 Wend. 
440. 
10 Blackstone, Comm., pp. 67, 68; Gray, “Nature and 
Sources of the Law,” p. 266, sec. 598; Sadler, “The Rela- 
tion of Custom to Law,” p. 50. 

11Cf. Gray, supra, sec. 634; Salmond, “Jurispru- 
dence,” p. 143; Gény, op. czt., vol. I, p. 324, sec. 111. 


e 59 


bo a 


= 


HISTORY, TRADITION AND SOCIOLOGY 
times, its energy was very likely exaggerated by 


Blackstone and his followers. Today we recog- 
nize,” in the words of Pound,** “that the custom 
is a custom of judicial decision, not of popular 
action.”’ It is “doubtful,” says Gray,’* “whether 
at all stages of legal history, rules laid down by 
judges have not generated custom, rather than 
custom generated the rules.” In these days, at all 
events, we look to custom, not so much for the 
creation of new rules, but for the tests and stand 


ards that are to determine how established rule 


~eshall be applied, When custom seeks to do more 


than this, there is a growing tendency in the law 
to leave development to legislation. Judges do not 
feel the same need of putting the zmprimatur of 
law upon customs of recent growth, knocking fér 
entrance into the legal system,.and viewed 
askance because of some novel aspect of form 
or feature, as they would if legislatures were not 
in frequent session, capable of establishing a 
title that will be unimpeached and unimpeach- 


12“Common Law and Legislation,’ 21 Harvard 
L. R. 383, 406. 
13 Supra, sec. 634. 


60 


HISTORY, TRADITION AND SOCIOLOGY 


able. But the power is not lost because it is 
exercised with caution. “The law merchant,” 
says an English judge, “is not fixed and stereo- 
typed, it has not yet been arrested in its growth 
by being moulded into a code; it is, to use the 
- words of Lord Chief Justice Cockburn in Good- 
win v. Roberts, L. R. 10 Exch. 346, capable of 
being expanded and enlarged to meet the wants 
of trade.”*} In the absence of inconsistent stat- 
ute, new classes of negotiable instruments may 
be created by mercantile practice.*> The obliga- 
tions of public and private corporations may re- 
tain the quality of negotiability, despite the pres- 
ence of a seal, which at common law would de- 
stroy it. “There is nothing immoral or contrary 
to good policy in making them negotiable if the 
necessities of commerce require that they should 
be so. A mere technical dogma of the courts or 
the common law cannot prohibit the commercial 
world from inventing or issuing any species of 

14 Edelstein v. Schuler, 1902, 2 K. B. 144, 154; cf. 
Bechuanaland Exploration Co. v. London Trading 


Bank, 1898, 2 Q. B. 658. 
15 Cases, supra. 


61 


HISTORY, TRADITION AND SOCIOLOGY 
security not known in the last century.’** So, in 
the memory of men yet living, the great inven- 
tions that embodied the power of steam and 
electricity, the railroad and the steamship, the 
telegraph and the telephone, have built up new 
customs and new law. Already there is a body 
of legal literature that deals with the legal prob- 
lems of the air. 

It is, however, not so much in the making of 
new rules as in the application of old ones that 
the creative energy of custom most often mani- 
fests itself today. General standards of right and 
duty are established. Custom must determine 
whether there has been adherence or departure. 
My partner has the powers that are usual in 
the trade. They may be so well known that the 
courts will notice them judicially. Such for illus- 
tration is the power of a member of a trading 
firm to make or indorse negotiable paper in the 


course of the firm’s business. *7 They may be 


16 Mercer County v. Hacket, 1 Wall. 83; cf. Chase 
Nat. Bank v. Faurot, 149 N. Y. 532. 
17 Lewy v. Johnson, 2 Pet. 186. 


62 


HISTORY, TRADITION AND SOCIOLOGY 


such that the court will require evidence of 
their existence.** The master in the discharge of 
his duty to protect the servant against harm 
must exercise the degree of care that is commonly 
exercised in like circumstance by men of ordinary 
prudence. The triers of the facts in determining 
whether that standard has been attained, must 
consult the habits of life, the everyday beliefs 
and practices, of the men and women about 
them. Innumerable, also, are the cases where the 
course of dealing to be followed is defined by the 
customs, or, more properly speaking, the usages, 
of a particular trade or market or profession.’® 
The constant assumption runs throughout the 
law that the natural and spontaneous evolutions 
of habit fix the limits of right and wrong. A slight 
extension of custom identifies it with customary 
morality, the prevailing standard of right con- 
duct, the mores of the time.” This is the point - 

18 First Nat. Bank v. Farson, 226 N. Y. 218. 

19Trwin v. Williar, 110 U. S. 499, 513; Walls v. 
Bailey, 49 N. Y. 464; 2 Williston on Contracts, sec. 


649. 
20 Cf. Gény, op. cit., vol. I, p. 319, sec. 110. 


63 


HISTORY, TRADITION AND SOCIOLOGY 


of contact between the method of tradition and 
the method of sociology. They have their roots in 
the same soil. Each method maintains the inter- 


action between conduct and order, between life 


@ and law. Life casts the moulds of conduct, which 
will some day b fixed as law. Law preserves 


the moulds, which have taken form and shape 
\“ from life. 


ra Three of the directive forces of our law, 
% philosophy, history and custom, have now been 
\S seen at work. We have gone far enough to ap- 
\S preciate the complexity of the problem. We see 


5 that to determine to be loyal to precedents and 
C/ to the principles back of precedents, does not 
carry us far upon the road. Principles are com- 

»plex bundles. It is well enough to say that we 
shall be consistent, but consistent with what? 
Shall it be consistency with the origins of the 
‘rule, the course and tendency of development? 
‘Shall it be consistency with logic or philosophy 

or the fundamental conceptions of jurisprudence 

as disclosed by analysis of our own and foreign 


~... Systems? All these loyalties are possible. All have 
64 


ge aime 


HISTORY, TRADITION AND SOCIOLOGY 


sometimes prevailed. How are we to choose be- 


tween them? Putting that question aside, how do 


- we choose between them?(Some concepts of the 


law have been in a peculiar sense _ historical 
growths. In such departments, history will tend 
to give direction to development. In other depart- 
ments, certain large and fundamental concepts, 
which comparative jurisprudence shows to be 
common to other highly developed systems, loom 
up above all others. In these we shall give a 
larger scope to logic and symmetry. A broad field 
there also is in which rules may, with approxi- 
mately the same convenience, be settled one way 
or the other. Here custom tends to assert itself 
as the controlling force in guiding the choice of 
paths. Finally, when the social needs demand 
one settlement rather than another, there are 
times when we must bend symmetry, ignore his- 


tory and sacrifice custom in the pursuit of other 


and larger ends. 


From history and philosophy and custom, we 


pass, therefore, to the force which in our day 


and generation is becoming the greatest of them ~~ f 


65 


HISTORY, TRADITION AND SOCIOLOGY 


“all, the power of social justice which finds its/ 






7 outlet and expression in the method of sociology 
' The final cause of law is the welfare of society ) 
The rule that misses its aim cannot per- 
manently justify its existence. “Ethical consid- 
erations can no more be excluded from the ad- 
ministration of justice which is the end and 
purpose of all civil laws than one can exclude 
the vital air from his room and live.”?* Logic 
and history and custom have their place. We 
will shape the law to conform to them when 
we may; but only within bounds. The oe 
which the law serves will dominate them all. 
There is an old legend that on one occasion God 
prayed, and his prayer was “Be it my will that 
my justice be ruled by my mercy.” That is a 
prayer which we all need to utter at times when 
the demon of formalism tempts the intellect with 
the lure of scientific order. I do not mean, of 
course, that judges are commissioned to set aside 
existing rules at pleasure in favor of any other 


t 

21 Dillon, “Laws and Jurisprudence of England and 
America,” p. 18, quoted by Pound, 27 Harvard L. R. 
731; 733. 


66 


HISTORY, TRADITION AND SOCIOLOGY 


set of rules which they may hold to be expedient , .” ? 


or wise mean that when they are called upon ca’ 


to say how far existing rules are to be extended : 
or restricted, they must let the welfare of nociety 
fix the path, its direction and its distance. \We 
_ are not to forget, said Sir George Jessel, in an 
often quoted judgment, that there is this para- 
mount public policy, that we are not lightly to 
interfere with freedom of contract.** So in this 
field, there may be a paramount public policy, 
one that will prevail over temporary incon- 
venience or occasional hardship, not lightly to 
sacrifice certainty and uniformity and order and 
coherence. All these elements must be considered. 
They are to be given such weight as sound 
judgment dictates. They are constituents of 
that social welfare which it is our business to 
discover.?* In a given instance we may find that 
they are constituents of preponderating value. In 
others, we may find that their value is subor- 
dinate. We must appraise them as best we can. 


22 Printing etc. Registering Co. v. Sampson, L. R. 
19 Eq. 462, 465. 
23 Cf. Briitt, supra, pp. 161, 163. 


67 





HISTORY, TRADITION AND SOCIOLOGY 


I have said that judges are not commissioned 
_ to make and unmake rules at pleasure in ac- 
cordance with changing views of expediency or 
wisdom. Our judges cannot say with Hobbes: 
“Princes succeed one another, and one judge 
passeth, another cometh; nay heaven and earth 
shall pass, but not one tittle of the law of nature 
shall pass, for it is the eternal law of God. There- 
fore, all the sentences of precedent judges that 
have ever been, cannot altogether make a law 
contrary to natural equity, nor any examples of 
former judges can warrant an unreasonable sen- 
tence or discharge the present judge of the trouble 
of studying what is equity in the case he is to 
judge from the principles of his own natural rea- 
son.”?* Nearer to the truth for us are the words 
of an English judge: “Our common law system 
consists in applying to new combinations of cir- 
cumstances those rules of law which we derive 
from legal principles and judicial precedents, 


and for the sake of attaining uniformity, con- 


24 Hobbes, vol. II, p. 264; quoted by W. G. Miller, 
“The Data of Jurisprudence,” p. 390. 


68 


HISTORY, TRADITION AND SOCIOLOGY 


sistency and certainty, we must apply those rules 
when they are not plainly unreasonable and in- | 
convenient to all cases which arise; and we are | 
not at liberty to reject them and to abandon all 
analogy to them in those in which they have not 
_ yet been judicially applied, because we think that 
the rules are not as convenient and reasonable as 
we ourselves could have devised.’’”° This does not 
mean that there are not gaps, yet unfilled, within 
which judgment moves untrammeled. Mr. Jus- 
tice Holmes has summed it up in one of his flash- 
ing epigrams: KI recognize without hesitation: 
that judges must and do legislate,.but they do so 
only interstitially; they are confined from molar 
to molecular motions. A common-law judge could 
not say, I think the doctrine of consideration a 
bit of historical nonsense and shall not enforce 
it in my court.’’** This conception of the legisla- 
tive power of a judge as operating between spaces 
is akin to the theory of “gaps in the law” familiar 


25Sir James Parke, afterwards Lord Wensleydale, 
in Mirehouse v. Russell, 1 Cl. & F. 527, 546, quoted by 
Ehrlich, “Grundlegung der Soziologie des Rechts” 
[1913], p. 234; cf. Pollock, “Jurisprudence,” p. 323. 

26 Southern Pacific Co. v. Jensen, 244 U.S. 205, 221. 


69 


HISTORY, TRADITION AND SOCIOLOGY 


to foreign | jurists.” “The general framework 
furnished by the statute is to be filled in for 
each case by means of interpretation, that is, 
by following out the principles of the statute. 
In every case, without exception, it is the busi- 
ness of the court to supply what the statute 
omits, but always by means of an interpretative 
function.’’* If the statute is interpreted by the 
method of “free decision,” the process differs in 
degree rather than in kind from the process fol- 
lowed by the judges of England and America in 
the development of the common law. Indeed, Ehr- 
lich in a recent book*® quotes approvingly an Eng- 
lish writer, who says*° that “a code would not 
except in a few cases, in which the law at pres- 


ent is obscure, limit any discretion now pos- 


27g Modern Legal Philosophy Series, pp. 159-163, 
172-175; cf. Ehrlich, “Die juristische Logik,” 215, 216; © 
Zitelmann, “Liicken im Recht,” 23; Britt, “Die Kunst 
der Rechtsandwendung,” p. 75; Stammler, “Lehre von 
dem Richtigen Rechts,” p. 271. 

28 Kiss, “Equity and Law,” 9 Modern Legal Philoso- 
phy Series, p. 161. 

29“Grundlegung der Soziologie des Rechts” [1913], 
Pp. 234. 
8079 L.Q. R. 15. 


70 


HISTORY, TRADITION AND SOCIOLOGY 


sessed by the judges. It would simply change ; 
the form of the rules by which they are bound.” 
I think that statement overshoots the mark. The 
fissures in the common law are wider than the 
fissures in a statute, at least in the form of 
statute common in England and the United 
States. In countries where statutes are oftener 
confined to the announcement of general prin- 
ciples, and there is no attempt to deal with de- 
tails or particulars, legislation has less tendency 
to limit the freedom of the judge. That is why 
in our own law there is often greater freedom of 
choice in the construction of constitutions than in 
that of ordinary statutes. Constitutions are more 
likely to enunciate general principles, which must 


be worked out and applied thereafter to particu- 


lar conditions. What concerns us now, however; 


is not the size of the gaps. It is rather the 
principle that shall determine how they are to be 
filled, whether their size be great or small. They’ 
method of sociology in filling the..gaps,-puts~its 
emphasis on_the-sacial_weliare. 


\ Social welfare is a broad term. I use it to 


71 


HISTORY, TRADITION AND SOCIOLOGY 


cover many concepts more or less allied. It may 
mean what is commonly spoken of as public . 
policy, the good of the collective body. In such 
cases, its demands are often those of mere ex- 
pediency or prudence. It may mean on the other 
hand the social gain that is wrought by ad- 
herence to the standards of right conduct, which 
find expression in the mores of the community. 
In such cases, its demands are those of religion 
or of ethics or of the social sense of justice, 
whether formulated in creed or system, or im- 
manent in the common mind. One does not 
readily find a single term to cover these and 
kindred aims which shade off into one another 
by imperceptible gradations. Perhaps we might 
fall back with Kohler** and Briitt®*? and Berolz- 
heimer** on the indefinable, but comprehensive 
something known as Kultur, if recent history had 
not discredited it and threatened odium for 

81 Enzyklopadie, Bd. 1, D. 10; Philosophy of Law, 12 
Modern Legal Philosophy Series, p. 58. 

82 Supra, p. 133, et seq. 


33 “System des Rechts und Wirthschaftsphilosophie,” 
Bd. 3, s. 28. 


72 


HISTORY, TRADITION AND SOCIOLOGY 


those that use it. I have chosen in its stead a 
term which, if not precise enough for the philoso- 
pher, will at least be found sufficiently definite 
and inclusive to suit the purposes of the judge. 
It is true, I think, today in every department 
of the law that the social value of a rule has 
become a test of growing pewer and impertance. 
_ This truth is powerfully driven home to the 
lawyers of this country in the writings of Dean 
Pound. “Perhaps the most significant advance in 
the modern science of law is the change from 
the analytical to the functional attitude.’’** “The 
emphasis has changed from the content of the 
precept and the existence of the remedy to the 
effect of the precept in action and the availa- 
bility and efficiency of the remedy to attain 
the ends for which the precept was devised.” 
Foreign jurists have the same thought: “The 
whole of the judicial function,” says Gmelin,** 


84Pound, “Administrative Application of Legal 
Standards,” Proceedings American Bar Association, 
1919, Pp- 441, 449. 

85 [bid., p. 451; cf. Pound, “Mechanical Jurispru- 
dence,” 8 Columbia L. R. 603. 

36 “Sociological Method,” transl., 9 Modern Legal 
Philosophy Series, p. 131. 


73 


Me 
* 
%, 


HISTORY, TRADITION AND SOCIOLOGY 
“has ... been shifted. The will of the State, ex- 


pressed in decision and judgment is to bring 
about a just determination by means of the 
subjective sense of justice inherent in the judge, 
guided by an effective weighing of the inter- 
ests of the parties in the light of the opinions 
generally prevailing among the community re- 
garding transactions like those in question. The 
determination should under all circumstances be 
in harmony with the requirements of good faith 
in business intercourse and the needs of practical 
life, unless a positive statute prevents it; and in 
weighing conflicting interests, the interest that 
is better founded in reason and more worthy of 
protection should be helped to achieve victory.’’** 
“On the one hand,” says Gény,** “we are to 
interrogate reason and conscience, to discover in 
our inmost nature, the very basis of justice: on 


the other, we are to address ourselves to social 


87 Gmelin, supra; cf. Ehrlich, “Die juristische Logik,” 
p. 187; Duguit, “Les Transformations du droit depuis le 
Code Napoléon,” transl., Continental Legal Hist. Series, 
vol. XI, pp. 72, 79. . 

38 Op. cit., vol. II, p. 92, sec. 159. 


74 


saree S. 


HISTORY, TRADITION AND SOCIOLOGY 


_ phenomena, to ascertain the laws of their har- 
mony and the principles of order which they 
exact.” And again:*° “Justice and general utility, / 
such will be the two objectives that will direct 
our course.” 

All departments.of the law. have been touched 
_and elevated by this spirit. In some, however, 
the method of sociology works in harmony with 
the method of philosophy or of evolution or of 
tradition. Those, therefore, are the fields where 
logic and coherence and consistency must still 
be sought as ends. In others, it seems to displace 
the methods that compete with it. Those are the 
fields where the virtues of consistency must yield 
within those interstitial limits where judicial 
power moves. In a sense it is true that we are 
applying the method of sociology when we pur- 
sue logic and coherence and consistency as the 
greater social values. I am concerned for the 

moment with the fields in which the method is 
in antagonism to others rather than with those 


in which their action is in unison. Accurate divi- 
89 Vol. II, p. 91. 
75 


f 


HISTORY, TRADITION AND SOCIOLOGY 
sion is, of course, impossible. A few broad areas | 
may, however, be roughly marked as those in | 
which the method of sociology has fruitful ap- | 


plication. Let me seek some illustrations of its 


9 workings. I will look for them first of all in the 


- see 


field of constitutional law, where the primacy 
of this method is, I think, undoubted, then in 
certain branches of private law where public 
policy, having created rules, must have like 
capacity to alter them, and finally in other fields 
where the method, though less insistent and per- 
vasive, stands ever in the background, and 
emerges to the front when technicality or logic 
or tradition may seem to press their claims un- 
duly. Ry 

I speak first of the constitution, and in par- 
ticular of the great immunities with which it sur- 
rounds the individual. No one shall be deprived 
of liberty without due process of law. Here is a 
concept of the greatest generality. Yet it is put 
before the courts en bloc. Liberty is not defined. 
Its limits are not mapped and charted. How 
shall: they be known? Does liberty mean the 

76 


HISTORY, TRADITION AND SOCIOLOGY 
same thing for successive generations? May re- 
straints that were arbitrary yesterday be useful 
and rational and therefore lawful today? May 
restraints that are arbitrary today become use- 
ful and rational and therefore lawful tomorrow? 
_ I have no doubt that the answer to these ques- 
tions must be yes. There were times in our 
judicial history when the answer might have been 
no. Liberty was conceived of at first as something 
static and absolute. The Declaration of Inde- 
pendence had enshrined it. The blood of Revolu- 
tion had sanctified it. The political philosophy 
of Rousseau and of Locke and later of Herbert 
Spencer and of the Manchester school of econo- 
mists had dignified and rationalized it. Laissez 
faire was not only a counsel of caution which 
statesmen would do well to heed. It was a cate- 
gorical imperative which statesmen, as well as 
judges, must obey. The “nineteenth century 
theory” was “‘one of eternal legal conceptions in- 
volved in the very idea of justice and containing 
potentially an exact rule for every case to be 


reached by an absolute process of logical deduc- 
77 


HISTORY, TRADITION AND SOCIOLOGY 


tion.’”*° The century had not closed, however, 
before a new political philosophy became re- 
flected in the work of statesmen and ultimately 
in the decrees of courts. The transition is inter- 
estingly described by Dicey in his “Law and 
Opinion in England.’** “The movement from 
individualistic liberalism to unsystematic col- 
lectivism” had brought changes in the social 
order which carried with them the need of a new 
formulation of fundamental rights and duties. 
In our country, the need did not assert itself so 
soon. Courts still spoke in the phrases of a 
philosophy that had served its day.*? Gradually, 
however, though not without frequent protest 
and intermittent movements backward, a new 


conception of the significance of constitutional 


limitations in the domain of individual liberty, 


emerged to recognition and to dominance. Judge 


Hough, in an interesting address, finds the dawn 


40 Pound, “Juristic Science and The Law,” 31 Har- 
vard L. R. 1047, 1048. 

41 Cf. Duguit, supra. 

42 Haines, “The Law of Nature in Federal Decisions,” 
25 Yale L. J. 617. 


78 


Pe 


HISTORY, TRADITION AND SOCIOLOGY 


of the new epoch in 1883, when Hurtado v. 
California, 110 U. S. 516, was argued.** If the 
new epoch had then dawned, it was still ob- 
scured by fog and cloud. Scattered rays of light 
may have heralded the coming day. They were 
not enough to blaze the path. Even as late as 
1905, the decision in Lochner v. N. Y., 198 U. S. 
45, still spoke in terms untouched by the light 
of the new spirit. It is the dissenting opinion of 
Justice Holmes, which men will turn to in the 
future as the beginning of an era.** In the in- 
stance, it was the voice of a minority. In prin- 
ciple, it has become the voice of a new dispensa- 
tion, which has written itself into law. “The 
Fourteenth Amendment does not enact Mr. Her- 
bert Spencer’s Social Statics.”** “A constitution € 
is not intended to embody a particular economic 
theory, whether of paternalism and the organic 
relation of the citizen to the state, or of laissez 


43 Hough, “Due Process of Law Today,” 32 Harvard 
L. R. 218, 227. 

44Cf. Hough, p. 232; also Frankfurter, ‘Const. 
Opinions of Holmes, J.,” 29 Harvard L. R. 683, 687; 
Ehrlich, “Die juristische Logik,” pp. 237, 2309. 

45108 U. S. 75. 


79 


HISTORY, TRADITION AND SOCIOLOGY 


faire.”** “The word liberty in the Fourteenth 
Amendment is perverted when it is held to pre- 
vent the natural outcome of a dominant opinion, 
unless it can be said that a rational and fair man 
necessarily would admit that thestatute proposed 
would infringe fundamental principles as they 
have been understood by the traditions of our 
people and our law.”*? That is the conception of 
liberty which is dominant today.** It has its 
critics even yet,** but its dominance is, I think, 
assured. No doubt, there will at times be differ- 
ence of opinion when a conception so delicate is 
applied to varying conditions.®° At times, indeed, 
the conditions themselves are imperfectly dis- 
closed and inadequately known. Many and in- 
sidious are the agencies by which opinion is 
poisoned at its sources. Courts have often been 


sii) eet JB 

47 P. 76. 

48 Noble v. State Bank, 219 U. S. 104; Tanner v. 
Little, 240 U. S. 3609; Hall v. Geiger Jones Co., 242 
U. S. 539; Green v. Frazier, 253 U. S. 233; Frankfurter, 
supra. 

49 Burgess, “Reconciliation of Government and 
Liberty.” 

50 Adams v. Tanner, 244 U. S. 590. 


80 


_ 


HISTORY, TRADITION AND SOCIOLOGY 


led into error in passing upon the validity of a 
statute, not from misunderstanding of the law, 
but from misunderstanding of the facts. This 
happened in New York. A statute forbidding 


might work for women was declared arbitrary and 


- void in 1907.”* In rgr5, with fuller knowledge of 


the investigations of social workers, a like statute 
was held to be reasonable and valid.°* Courts 
know today that statutes are to be viewed, not 
in isolation or im vacuo, as pronouncements of 
abstract principles for the guidance of an ideal 
community, but in the setting and the frame- 
work of present-day conditions, as revealed by 


the labors of economists and students of the 


Sito ae 


social sciences in our own country and abroad.** / 


The same fluid and dynamic conception which 
underlies the modern notion of liberty, as secured 


to the individual by the constitutional immunity, 


51 People v. Williams, 189 N. Y. 131. 
52 People v. Schweinler Press, 214 N. Y. 395. 
53 Muller v. Oregon, 208 U. S. 412; Pound, “Courts 


_and Legislation,” 9 Modern Legal Philosophy Series, p. 


225; Pound, “Scope and Progress of Sociological Juris- 
prudence,” 25 Harvard L. R. 513; cf. Brandeis, J., in 
Adams v. Tanner, 244 U. S. 590, 600. 


81 


HISTORY, TRADITION AND SOCIOLOGY 


must also underlie the cognate notion of equality. 
No state shall deny to any person within its 
jurisdiction “the equal protection of the laws.”>* 
Restrictions, viewed narrowly, may seem to 
foster inequality. The same restrictions, when 
viewed broadly, may be seen “to be necessary 
in the long run in order to establish the equality 
of position between the parties in which liberty 
of contract begins.”°> Charmont in “La Renais- 
sance du droit naturel,”°* gives neat expression 
to the same thought: “On tend a considerer qu’il 
n’y a pas de contrat respectable si les parties 
n’ont pas été placées dans les conditions non 
seulement de liberté, mais d’égalité. Si lun des 
contractants est sans abri, sans ressources, con- 
damné a subir les exigences de I’autre, la liberté 
de fait est supprimée.””*” 


From all this, it results that the content of 


54U. S. Const., 14th Amendment. 

55 Holmes, J., dissenting in Coppage v. Kansas, 236 
VUsSuree?: 

56 Montpellier, Coulet et fils., éditeurs, 1910. 

57 “There is now a tendency to consider no contract 
worthy of respect unless the parties to it are in rela- 
tions, not only of liberty, but of equality. If one of the 


82 eee 


4 


HISTORY, TRADITION AND SOCIOLOGY 


constitutional immunities is not constant, but 
varies from age to age. “The needs of successive 
generations may make restrictions imperative 
today, which were vain and capricious to the 
vision of times past.’”°* “We must never forget,” 
in Marshall’s mighty phrase, “that it is a consti- 
tution we are expounding.”®** Statutes are de4 
Signed _to_meet.. the. fugitive exigencies of the 
hour. Amendment is easy as the exigencies 
change. In such cases, the meaning, once con- 
strued, tends legitimately to stereotype itself in 
the form first cast. A constitution states or ought 
to state not rules for the passing hour, but 
princ iples for an expanding future. In so far as 
it deviates from that standard, and descends into 
details and particulars, it loses its flexibility, the 


scope of interpretation contracts, the meaning 


parties be without defense or resources, compelled to 
comply with the demands of the other, the result is 
a supression of true freedom.”—Charmont, supra, p.172; 
transl. in 7 Modern Legal Philosophy Series, p. 110, 
sec. 83. 

58 Klein v. Maravelas, 219 N. Y. 383, 386. 

59 Cf. Frankfurter, supra; McCulloch v. Maryland, 
4 Wheat. 407. 


83 


% 


\\ our present conditions would be.’ ”’*° So Kohler: 


HISTORY, TRADITION AND SOCIOLOGY 
hardens. While it is true to its function, it main- 
tains its power of adaptation, its suppleness, its 
play. I think it is interesting to note that even 
in the interpretation of ordinary statutes, there 
are jurists, at any rate abroad, who maintain 
that the meaning of today is not always the 
meaning of tomorrow. “The President of the 
highest French Court, M. Ballot-Beaupré, ex- 
plained, a few years ago, that the provisions of 
the Napoleonic legislation had been adapted to 
modern conditions by a judicial interpretation 
in ‘le sens évolutif.’ ‘We do not inquire,’ he said, 
‘what the legislator willed a century ago, but 
what he would have willed if he had known what 


e@‘It follows from all this that the interpretation 
of a statute must by no means of necessity re- 
main the same forever. To speak of an exclu- 
sively correct interpretation, one which would be 


the true meaning of the statute from the begin- 


60 Munroe Smith, “Jurisprudence,” pp. 29; 30; cf. 
Vander Eycken, supra, pp. 383, 384; also Briitt, supra, 
p. 62. 


84 


‘i 


HISTORY, TRADITION AND SOCIOLOGY 


ning to the end of its day, is altogether erro- 
neous.** I think the instances must be rare, if any 
can be found at all, in which this method of 
interpretation has been applied in English or 
American law to ordinary legislation. I have no 
doubt that it has been applied in the past and 
with increasing frequency will be applied in the 
future, to fix the scope and meaning of the 
broad precepts and immunities in state and na- 
tional constitutions. I see no reason why it may 
not be applied to statutes framed upon lines 
similarly general, if any such there are. We are 
to read them, whether the result be contraction 
or expansion, in “le sens évolutif.”®? 

Apposite illustrations may be found in recent 
statutes and decisions. It was long ago held by 
the Supreme Court that the legislature had the 


power to control and regulate a business affected 


61 Kohler, “Interpretation of Law,” transl. in 9 
Modern Legal Philosophy Series, 192; cf. the Report 
of Prof. Huber on the German Code, quoted by Gény, 
“Technic of Codes,” 9 Modern Legal Philosophy Series, 
p. 548; also Gény, “Méthode et Sources en droit privé 
positif,” vol. I, p. 273. 

62 Munroe Smith, supra. 


85 


HISTORY, TRADITION AND SOCIOLOGY 


_ with “a public use.”° It is held by the Supreme 
Court today that there is a like power where the 
business is affected with “a public interest.’ 
The business of fire insurance has been brought 
within that category.®** A recent decision of an 
inferior court has put within the same category 
the business of the sale of coal where the emer- 
gency of war or of the dislocation that results 
from war brings hardship and oppression in the 
train of unfettered competition.°® The advocates 
of the recent housing statutes in New York® pro- 
fess to find in like principles the justification for 
new restraints upon ancient rights of property. I 
do not suggest any opinion upon the question 
whether those acts in any of their aspects may 
be held to go too far. I do no more than indicate 
the nature of the problem, and the method and 
spirit of approach.°* 


63 Munn v. Illinois, 94 U. S. 113. 

64 German Alliance Ins. Co. v. Kansas, 233 U. S. 380. 

65 German Alliance Ins. Co. v. Kansas, supra. 

66 American Coal Mining Co. v. Coal & Food Com- 
mission, U. S. District Court, Indiana, Sept. 6, 1920. 

67 L. 1920, chaps. 942 to 953. 

68 Since these lectures were written, the statutes have 
been sustained: People ex rel. Durham Realty Co. v. 


86 


HISTORY, TRADITION AND SOCIOLOGY 


Property, like liberty, though immune underf ‘ 
the Constitution from destruction, is not ue 
from regulation essential for the common good./ 
What that regulation shall be, every generation 
must work out for itself.°° The generation 
_ which gave us Munn v. Illinois, 94 U. S. 113. 
(1876), and like cases, asserted the right of regu- 
lation whenever business was “affected with a 
public use.” The phrase in its application meant 
littlemore thanif itsaid, whenever the social need 
shall be imminent and pressing, Such a formula- 
tion of the principle may have been adequate 
for the exigencies of the time. Today there is a 
growing tendency in political and juristic thought 
to probe the principle more deeply and formulate 
it more broadly. Men are saying today that 
property, like every other social institution, has 
a social function to fulfill. Legislation which de- 
stroys the institution is one thing, Legislation 
which holds it true to its function is quite an- 
other. That is the dominant theme of a new and 


La Fetra, 230 N. Y. 429; Marcus Brown Holding Co. 
v. Feldman, 256 U. S. 170. 
69 Green v. Frazier, 253 U. S. 233. 


87 


HISTORY, TRADITION AND SOCIOLOGY 


forceful school of publicists and jurists on the 
continent of Europe, in England, and even here. 
Among the French, one may find the thought 
developed with great power and suggestiveness 
by Duguit in his “Transformations générales du 
droit privé depuis le Code Napoléon.””° It is 
yet too early to say how far this new conception 
of function and its obligations will gain a lodg- 
ment in our law. Perhaps we shall find in the 
end that it is little more than Munn v. Illinois 
in the garb of a new philosophy. I do not attempt 
to predict the extent to which we shall adopt it, 
or even to assert that we shall adopt it at all. 
Enough for my purpose at present that new tim 
and new manners may call for new standards an 
new rules. 

The courts, then, are free in marking th 
limits of the individual’s immunities to shap 
their judgments in accordance with reason and 
justice. That does not mean that in judging the 
validity of statutes they are free to substitute 


7 Transl., Continental Legal Hist. Series, vol. XI, 
Pp. 74, sec. 6, et seqg.; for a more extreme view, see R. H. 
Tawney, “The Acquisitive Society.” 


88 


HISTORY, TRADITION AND SOCIOLOGY 
their own ideas of reason and justice for those 
of the men and women whom they serve. Their 
standard must be an objective one. In such 


matters, the thing that counts is not what I _be- 


lieve to be right. It is what I may reasonably,. 


_ believe that some other man of normal intellect 
and conscience might reasonably look upon as 
right. ““While the courts must exercise a judg- 
ment of their own, it by no means is true that 
every law is void which may seem to the judges 
who pass upon it excessive, unsuited to its os- 
tensible end, or based upon conceptions of moral- 
ity with which they disagree. Considerable lati- 
tude must be allowed for difference of view as 
well as for possible peculiar conditions which this 
court can know but imperfectly, if at all. Other- 
wise a constitution, instead of embodying only 
relatively fundamental rules of right, as generally 
understood by all English-speaking communities, 
would become the partisan of a particular set of 
ethical or economical opinions, which by no 
means are held semper ubique et ab omnibus.”’™ 
71 Otis v. Parker, 187 U. S. 608. 
89 


4 


HISTORY, TRADITION AND SOCIOLOGY 


Here as so often in the law, “the standard of 


x 


conduct is external, and takes no account of the 


personal equation of the man concerned.””? “The 
interpreter,” says Brutt,’* “must above all things 
put aside his estimate of political and legislative 
values, and must endeavor to ascertain in a 
purely objective spirit what ordering of the social 
life of the community comports best with the 
aim of the law in question in the circumstances 
before him.” Some fields of the law there are, in- 


deed, where there is freer scope for subjective 


vision. Of these we shall say more hereafter. The 


personal element, whatever its scope in other 
spheres, should have little, if any, sway in de- 
termining the limits of legislative power. One de- 
partment of the government may not force upon 
another its own standards of propriety. “It must 
be remembered that legislatures are ultimate 
guardians of the liberties and welfare of. the 
people in quite as great a degree as courts.” 

72 The Germanic, 196 U. S. 580, 506. 

73 “Die Kunst der Rechtsanwendung,” p. 57. 


74 Missouri, K. & T. Co. v. May, 194 U. S. 267, 270; 
People v. Crane, 214 N. Y. 154, 173. 


go 


HISTORY, TRADITION AND SOCIOLOGY 


Some critics of our public law insist that the 
power of the courts to fix the limits of permissible 
encroachment by statute upon the liberty of the 
individual is one that ought to be withdrawn.’® 
It means, they say, either too much or too little. 
If it is freely exercised, if it is made an excuse 
for imposing the individual beliefs and philoso- 
phies of the judges upon other branches of the 
government, if it stereotypes legislation within 
the forms and limits that were expedient in the 
nineteenth or perhaps the eighteenth century, it 
shackles progress, and breeds distrust and suspi- 
cion of the courts. If, on the other hand, it is in- 
terpreted in the broad and variable sense which I 
believe to be the true one, if statutes are to be 
sustained unless they are so plainly arbitrary and 
oppressive that right-minded men and women 
could not reasonably regard them otherwise, the 
right of supervision, it is said, is not worth the | 
danger of abuse. “There no doubt comes a time 


when a statute is so obviously oppressive and ab- 


75 Cf. Collins, “The 14th Amendment and the States,” 
pp. 158, 166. 


gI 


HISTORY, TRADITION AND SOCIOLOGY 
surd that it can have no justification in any sane 
polity.”’° Such times may indeed come, yet only 
seldom. The occasions must be few when legisla- 
tures will enact a statute that will merit con- 
demnation upon the application of a test so 
liberal; and if carelessness or haste or momentary 
passion may at rare intervals bring such statutes 
into being with hardship to individuals or classes, 
we may trust to succeeding legislatures for the 
undoing of the wrong. That is the argument of 
the critics of the existing system. My own belief 
is that it lays too little stress on the value of the 
“imponderables.” The utility of an external 
power restraining the legislative judgment is not 
to be measured by counting the occasions of its 
exercise. The great ideals of liberty and equality 
are preserved against the assaults of opportunism, 
the expediency of the passing hour, the erosion of 
small encroachments, the scorn and derision of 
those who have no patience with general prin- 


ciples, by enshrining them in censtitutions, and 


76 Learned Hand, “Due Process of Law and the 
Eight Hour Day,” 21 Harvard L. R. 495, 508. 


Q2 


HISTORY, TRADITION AND SOCIOLOGY 


consecrating to the task of their protection a 
body of defenders. By conscious or subconscious 
influence, the presence of this restraining power, 
aloof in the background, but none the less always 
in reserve, tends to stabilize and rationalize the 
legislative judgment, to infuse it with the glow 
of principle, to hold the standard aloft and 
visible for those who must run the race and keep 
the faith."” I do not mean to deny that there 
have been times when the possibility of judi- 
cial review has worked the other way. Legis- 
latures have sometimes disregarded their own 
responsibility, and passed it on to the courts. 
Such dangers must be balanced against those of 
independence from all restraint, independence on 
the part of public officers elected for brief terms, 
without the guiding force of a continuous tradi- 
tion. On the whole, I believe the latter dangers 
to be the more formidable of the two. Great 
maxims, if they may be violated with impunity, 
are honored often with lip-service, which passes 

77 Cf, Laski, “Authority in the Modern State,” pp. 
62, 63. 

93 


HISTORY, TRADITION AND SOCIOLOGY 
easily into irreverence. The restraining power of 
the judiciary does not manifest its chief worth 
in the few cases in which the legislature has 
gone beyond the lines that mark the limits of dis- 
cretion. Rather shall we find its chief. worth in 
making vocal and audible the ideals that might 
otherwise be silenced, in giving them continuity 
of life and of expression, in guiding and directing 
choice within the limits where choice ranges. 
This function should preserve to the courts the 
power that now belongs to them, if only the 
power is exercised with insight into social values, 
and with suppleness of adaptation to changing 
social needs. 

I pass to another field where the dominance of 
the method of sociology may be reckoned as as- | 
sured. There are some rules of private law which 
have been shaped in their creation by public 
policy, and this, not merely silently or in conjunc- 
tion with other forces, but avowedly, and almost, 
if not quite, exclusively. These, public policy, as 
determined by new conditions, is competent to 
change. I take as an illustration modern decisions 


94 


HISTORY, TRADITION AND SOCIOLOGY 
which have liberalized the common law rule con- 
demning contracts in restraint of trade. The 
courts have here allowed themselves a freedom 
of action which in many branches of the law 
they might be reluctant to avow. Lord Watson 
put the matter bluntly in Nordenfeldt v. Maxim, 
Nordenfeldt Guns & Ammunition Co. L. R. 
1894 App. Cas. 535, 553: “‘A series of decisions 
based upon grounds of public policy, however 
eminent the judges by whom they were delivered, 
cannot possess the same binding authority as 
decisions which deal with and formulate princi- 
ples which are purely legal. The course of policy 
pursued by any country in relation to, and for 
promoting the interests of, its commerce must, 
as time advances and as its commerce thrives, 
undergo change and development from various 
causes which are altogether independent of the 
action of its courts. In England, at least, it is 
beyond the jurisdiction of her tribunals to mould 
and stereotype national policy. Their function, 
when a case like the present is brought before 
them, is, in my opinion, not necessarily to ac- 


95 


HISTORY, TRADITION AND SOCIOLOGY 


cept what was held to have been the rule of. 
policy a hundred or a hundred and fifty years 
ago, but to ascertain, with as near an approach 
to accuracy as circumstances permit, what is the 
tule of policy for the then present time. When 
_ that rule has been ascertained, it becomes their 
duty to refuse to give effect to a private contract 
which violates the rule, and would, if judicially 
enforced, prove injurious to the community.” A 
like thought finds expressien in the epiniens of 
our own courts. “Arbitrary rules which were 
originally well founded have thus been made to 
yield to changed conditions, and underlying prin- 
ciples are applied to existing methods of doing 
business. The tendencies in most of the American 
courts are in the same direction.”’* I think we 
may trace a like development in the attitude of 
the courts toward the activities of labor unions. 
The suspicion and even hostility of an earlier 
generation found reflection in judicial decisions 


which a changing conception of social values 


78 Knowlton, J., in Anchor Electric Co. v. Hawkes, 
171 Mass. ror, 104. 


96 


ae 


os 


HISTORY, TRADITION AND SOCIOLOGY 


has made it necessary to recast.’ Some remnants 
of the older point of view survive, but they are 
remnants only. The field is one where the law 
is yet in the making or better perhaps in the re- 
making. We cannot doubt that its ‘new form will | 
_bear an impress of social needs and values which 
are emerging even now to recognition and to 


power. 


79 Cf. Laski, “Authority in the Modern State,” p. 39. 


97 


Lecture III. The Method of 
Sociology. The Judge as 


a Legislator 


HAVE chosen these branches of the law 
I merely as conspicuous illustrations of the 
application by the courts of the method of 
sociology. But the truth is that there is no branch 
where the method is not fruitful. Even when it _ 
does not seem to dominate, it is always in reserve. 
It is the arbiter between other methods, de- 
termining in the last analysis the choice of each, 
weighing their competing claims, setting bounds 
to their pretensions, balancing and moderating 
and harmonizing them all. Few rules in our time . 
are so well established that they may not be 
called upon any day to justify their existence 
as means adapted to an end. If they do not func- 
tion, they are diseased. If they are diseased, they 
must not propagate their kind. Sometimes they 
are cut out and extirpated altogether. Sometimes 

98 


THE METHOD OF SOCIOLOGY 
they are left with the shadow of continued life, 


but sterilized, truncated, impotent for harm. 
We get a striking illustration of the force of 
logical consistency, then of its gradual breaking 
down before the demands of practical conven- 
-ience in isolated or exceptional instances, and 
finally of the generative force of the exceptions 
as a new stock, in the cases that deal with the 
right of a beneficiary to recover on a contract. 
England has been logically consistent and has 
refused the right of action altogether. New York 
and most states yielded to the demands of con- 
venience and enforced the right of action, but 
at first only exceptionally and subject to many 
restrictions. Gradually the exceptions broadened 
till today they have left little of the rule.* It 
survives chiefly in those cases where intention 
would be frustrated or convenience impaired by 
the extension of the right of action to others than 
the contracting parties. Rules derived by a 


process of logical deduction from pre-established 


1Seaver v. Ransom, 224 N. Y. 233. 
2Fosmire v. National Surety Co., 229 N. Y. 44. 


99 


THE METHOD OF SOCIOLOGY 


conceptions of contract and obligation have 
broken down before the slow and steady and 
erosive action of utility and justice.® 

We see the same process at work in other 
fields. We no longer interpret contracts with 
meticulous adherence to the letter when in con- 
flict with the spirit. We read covenants into 
them by implication when we find them “instinct 
with an obligation” imperfectly expressed. “The 
law has outgrown its primitive stage of formalism 
when the precise word was the sovereign talisman, 
and every slip was fatal.”* Perhaps it is in the 
‘ field of procedure that we have witnessed the 
chief changes; though greater ones must yet be 
wrought. Indictments and civil pleadings are 
viewed with indulgent eyes. Rulings upon ques- 
tions of evidence are held with increasing fre- 
quency to come within the discretion of the judge 
presiding at the trial. Errors are no longer ground 
for the upsetting of judgments with the ensuing 
horror of new trials, unless the appellate court 


8 Cf. Duguit, op. cit., Continental Legal Hist. Series, 
vol. XI, p. 120, sec. 36. 
4Wood v. Duff Gordon, 222 N. Y. 88. 


I0o0 


THE METHOD OF SOCIOLOGY 
is satisfied that they have affected the result.| 


Legislation has sometimes been necessary to free ; 
us from the old fetters. Sometimes the con- 
servatism of judges has threatened for an interval 

to rob the legislation of its efficacy.’ This danger 
was disclosed in the attitude of the courts toward 

the reforms embodied in codes of practice, in the 
days when they were first enacted.* Precedents; 
established in those times exert an unhappy in- 
fluence even now. None the less, the tendency; ef 
_ today is in the direction of a growing sar al 
The new spirit has made its way gradually; and 
its progress, unnoticed step by step, is visible in 
retrospect as we look back upon the distance 
traversed. The old forms remain, but they are 
filled with a new content. We are getting away» 
from what Ehrlich calls “die spielerische und 
die mathematische Entscheidung,’” the concep- 


tion of a lawsuit either as a mathematical prob- 


_5 Kelso v. Ellis, 224 N. Y. 528, 536, 537; California 
Packing Co. v. Kelly S. & D. Co., 228 N. Y. 40. 
6 Pound, “Common Law and Legislation,” 21 Har- 
_vard L. R. 383, 387. 
_ tEhriich, “Die juristische Logik,” p. 295; cf. pp. 294, 
296. 


Iol 


wr 


THE METHOD OF SOCIOLOGY 


lem or as a sportsman’s game. Our own Wigmore 

has done much to make that conception out of 

date.* We are thinking of the end which the law 

serves, and fitting its rules to the task of service. 

This conception of the end of the law as de- 

termining the direction of its growth, which was 
Jhering’s great contribution to the theory of 
jurisprudence,’ finds its organon, its instrument, 

in the method of sociology. Not the origin, but 

WW the goal, is the main thing. There can be no 


LAVA 


wisdom in the choice of a path unless we know 
r KY ow where it will lead. The teleological conception of 


his function must be ever in the judge’s mind. 
This means, of course, that the juristic philoso- 
phy of the common law is at bottom the philoso- 
phy of pragmatism.*® Its truth is relative, not 
absolute. The rule that functions well produces 

8 See his Treatise on Evidence, passim. 

® Jhering, “Zweckim Recht,” 5 Modern Legal Philoso- 
phy Series; also Gény, op. cit., vol. I, p. 8; Pound, 
“Scope and Purpose of Sociological Jurisprudence,” 25 
Harvard L. R. 140, 141, 145; Pound, “Mechanical 
Jurisprudence,” 8 Columbia L. R. 603, 610. | 


10 Pound, “Mechanical Jurisprudence,” 8 Columbia. 
L. R. 603, 609.° 


I02 


THE JUDGE AS A LEGISLATOR 


a title deed to recognition. Only in determining 
how it functions we must not view it too nar- 
rowly. We must not sacrifice the general to the 
particular. We must not throw to the winds the 
advantages of consistency and uniformity to do 
justice in the instance.** We must keep within 
those interstitial limits which precedent and 
custom and the long and silent and almost inde- 
finable practice of other judges through the 
centuries of the common law have set to judge- 
made innovations. But within the limits thus 
set, within the range over which choice moves, 
the final principle of selection for judges, as for 
legislators, is one of fitness to an end. “Le but, 
est la vie interne, l’ame cachée, mais génératrice, 
de tous les droits.”’* We do not pick our rules 
of law full-blossomed from the trees. Every judge 
consulting his own experience must be conscious 
of times when a free exercise of will, directed of 

11 Cf, Briitt, supra, pp. 161, 163. 

12 Saleilles, “De la Personnalité Juridique,” p. 4097. 

“Avec Jhering nous resterons des réalistes, mais 


avec lui aussi nous serons des idéalistes, attachés 4 Didée 
de but et de finalité sociale.”—Saleilles, p. 516. 


103 


THE JUDGE AS A LEGISLATOR 


set purpose to the furtherance of the common 
good, determined the form and tendency of a rule 
which at that moment took its origin in one 
creative act. Savigny’s conception of law as 
something realized without struggle or aim or 
purpose, a process of silent growth, the fruition 
in life and manners of a people’s history and 
genius, gives a picture incomplete and partial. 
It is true if we understand it to mean that the , 


Vv 


{ mores of his day. It is one-sided and therefore : 


judge in shaping the rules of law must heed the 


false in so far as it implies that the mores of the 
day automatically shape rules which, full grown 
and ready made, are handed to the judge.** 
Legal norms are confused with legal principles— 
Entscheidungsnormen with Rechtssdize.** Law is, 
indeed, an historical growth, for it is an expres- 
sion of customary morality which develops 
_ silently and unconsciously from one age to an- 


13Cf. Ehrlich, “Grundlegung der Soziologie des 
Rechts,” pp. 366, 368; Pound, “Courts and Legislatign,” 
9 Modern Legal Philosophy Series, p. 212; Gray, “Nature 
and Sources of Law,” secs. 628, 650; Vinogradoff, “Out- 
lines of Historical Jurisprudence,” p. 135. 

14 Ehrlich, supra. 


104 


THE JUDGE AS A LEGISLATOR 
other. That is the great truth in Savigny’s theory 


of its origin. But law is also a conscious or pur- 
posed growth, for the expression of customary 
morality will be false unless the mind of the 
judge is directed to the attainment of the moral 
end and its embodiment in legal forms.*®* Noth- 
ing less than conscious effort will be adequate if 
the end in view is to prevail. The standards or 
patterns of utility and morals will be found by 
the judge in the life of the community. They 
will be found in the same way by the legislator. 
That does not mean, however, that the work of 
the one any more than that of the other is a 
replica of nature’s forms. 

There has been much debate among foreign 
jurists whether the norms of right and useful 
conduct, the patterns of social welfare, are to be 
found by the judge in conformity with an objec- 
tive or a subjective standard. Opposing schools 
of thought have battled for each view.*® At times, 


15 Cf. Gény, op. cit., vol. I, p. 263, sec. 92. 

16 For a clear and interesting summary, see Britt, 
supra, p. 101, et seqg.; cf. Gény, op. cit., vol. I, p. 2215 
and contrast Flavius, op. cit., p. 87. 


105 


THE JUDGE AS A LEGISLATOR 


the controversy has seemed to turn upon the 
use of words and little more. So far as the distinc- 
tion has practical significance, the traditions of 
our jurisprudence commit us to the objective 
standard. I do not mean, of course, that this ideal 
of objective vision is ever perfectly attained. We 
cannot transcend the limitations of the ego and 
see anything as it really is. None the less, the 
ideal is one to be striven for within the limits of 
our capacity. This truth, when clearly perceived, 
tends to unify the judge’s function. His duty to 
declare the law in accordance with reasonand jus- 
tice is seen to be a phase of his duty to declare it 
in accordance with custom. It is the customary 
morality of right-minded men and women which 
he is to enforce by his decree. A jurisprudence 
that is not constantly brought into relation to 
objective or external standards, incurs the risk 
of degenerating into what the Germans call “Die 
Gefiihlsjurisprudenz,” a jurisprudence of mere 
sentiment or feeling.*” A judicial judgment, says 
Stammler, “should be a judgment of objective 
17 Britt, supra, pp. 101-111. 


106 


THE JUDGE AS A, LEGISLATOR 


right, and no subjective and free opinion; a 
verdict and not a mere personal fiat. Evil stands 
the case when it is to be said of a judicial decree 
as the saying goes in the play of the ‘Two Gen- 
tlemen of Verona’ (Act I, sc. ii): 
“‘‘T have no other but a woman’s reason; 
I think him so, because I think him so.’ ””?® 
Scholars of distinction have argued for a more 
subjective standard. “We all agree,” says Pro- 
fessor Gray,’® “that many cases should be de- 
cided by the courts on notions of right and 
wrong, and, of course, everyone will agree that 
a judge is likely to share the notions of right and 
wrong prevalent in the community in which he 
lives; but suppose in a case where there is 
nothing to guide him but notions of right and 
wrong, that his notions of right and wrong differ 
from those of the community—which ought he 
to follow—his own notions, or the notions of the 
community? Mr. Carter’s theory [“‘Origin and 
Sources of Law,” J. C. Carter] requires him to 


18 Stammler, “Richtiges Recht,” s. 162, quoted by 
Briitt, supra, p. 104. 
19 “Nature and Sources of Law,” sec. 610. 


107 


yo. 







THE JUDGE AS A LEGISLATOR 
say that the judge must follow the notions of the 


community. I believe that he should follow his 
own notions.” The hypothesis that Professor 
Gray offers us, is not likely to be realized in 
practice. Rare indeed must be the case when, 
with conflicting notions of right conduct, there 
will be nothing else to sway the balance. If, how-. 
ever, the case supposed were here, a judge, I 
think, would err if he were to impose upon the 
community as a rule of life his own idiosyncrasies 
of conduct or belief. Let us, suppose, for illustra- 
tion, a judge who looked upon theatre-going as 
a sin. Would he be doing right if, in a field where 
the rule of law was still unsettled, he permitted 
this conviction, though known to be in conflict 
with the dominant standard of right conduct, to 
govern his decision? My own notion is that he 


would be under-a~duty to conform to the & 





“cepted standards of the community, the mores 
of the times. This does not ok ae tee 


0 raise the level of prevail- 
ing conduct. In one field or another of activity, 
practices in opposition to the sentiments and 


108 


THE JUDGE AS A LEGISLATOR 
standards of the age may grow up and threaten 
to intrench themselves if not dislodged. Despite 
their temporary hold, they do not stand com- 
parison with accepted norms of morals. Indolence 
or passivity has tolerated what the considerate 
judgment of the community condemns. In such 


cases, one of the highest functions of the judge 


is to establish the true relation between conduct | 


and profession. There are even times, to speak — 


somewhat paradoxically, when nothing less than 
a subjective measure will satisfy objective stand- 
ards. Some relations in life impose a duty to 
act in accordance with the customary morality 
and nothing more. In those the customary 
morality must be the standard for the judge. 
Caveat emptor is a maxim that will often have 
to be followed when the morality which it ex- 
presses is not that of sensitive souls. Other rela- 
tions in life, as, e.g., those of trustee and 
beneficiary, or principal and surety, impose a 
duty to act in accordance with the highest stand- 
ards which a man of the most delicate conscience 
and the nicest sense of honor might impose upon 


109 


' 
‘I 


THE JUDGE AS A LEGISLATOR 


himself. In such cases, to enforce adherence to 
those standards becomes the duty of the judge. 
Whether novel situations are to be brought 
within one class of relations or within the other 
must be determined, as they arise, by considera- 
tions of analogy, of convenience, of fitness, and 
of justice. 

The truth, indeed, is, as I have said, that the 
distinction between the subjective or individual 
and the objective or general conscience, in the 
field where the judge is not limited by established _ 


rules, is shadowy and evanescent, and tends to 


become one of words and little more. For the 
casuist and the philosopher, it has its speculative 
intediet: In the practical administration of. jus- 
tice, it will seldom be decisive for the judge. 
This is admitted by Briitt, one of the staunchest 
upholders of the theory of objective right.?° The 
perception of objective right takes the color of 
the subjective mind. The conclusions of the 
subjective mind take the color of customary | 
practices and objectified beliefs. There is con- 
20 Supra, p. 139. 


IIo 


THE JUDGE AS A LEGISLATOR 


stant and subtle interaction between what is 
without and what is within. We may hold, on the 
one side, with Tarde and his school, that all 
social innovations come “from individual inven- 
tions spread by imitation,’”** or on the other side, 
with Durkheim and his school, that all such 
innovations come “through the action of the 
social mind.’? In either view, whether the im- 
pulse spreads from the individual or from society, 
from within or from without, neither the com- 
ponents nor the mass can work in independence 
of each other. The personal and the general mind 
and will are inseparably united. The difference, 
as one theory of judicial duty or the other pre- 
vails, involves at most a little change of em- 
phasis, of the method of approach, of the point 
of view, the angle, from which problems are en- 
visaged. Only dimly and by force of an influence 
subconscious, or nearly so, will the difference be 


reflected in the decisions of the courts. 


21 Barnes, “Durkheim’s Political Theory,’ 35 Pol. 
Science Quarterly, p. 230. 
22 Tbid.; cf. Barker, “Political Thought from Spencer 


to Today,” pp. 151, 153, 175. 
III 


rr, 


/ 


‘wae 


THE JUDGE AS A LEGISLATOR 


My analysis of the judicial process comes then 


' to this, and little more: logic, and history, and 


custom, and utility, and the accepted_standards 
of right conduct, are the forces which singly or 


in combination. shape the Progress of the law. 


“Which of these forces shall dominate in any 


case, must depend largely upon the comparative 


importance or value of the social interests that 


_ will be thereby promoted or impairéd:28 One oft 


‘the most fundamental social interests is that 


" law shall be uniform and impartial. There must 


Le nothing in its action that savors of prejudice ; 
or favor or even arbitrary whim or fitfulness. | 


Therefore in the main there shall be adherence | 


to precedent. There shall be symmetrical develop- 
ment, consistently with history or custom when 
history or custom has been the motive force, or 
the chief one, in giving shape to existing rules, 
and with logic or philosophy when the motive 
power has been theirs. But symmetrical develop- 
ment may be bought at too high a price. Uni- 


23 Vander Eycken, “Méthode Positive de l’Interpréta- 
tion juridique,” p. 59; Ehrlich, “Die juristische Logik,” 
p. 187. 


II2 


| 


THE JUDGE AS A LEGISLATOR 


formity ceases to be a good when it becomes 
uniformity of oppression. The social interest 
served by symmetry or certainty must then be 
balanced against the social interest served by 
equity and fairness or other elements of social 
_ welfare. These may enjoin upon the judge the 
duty of drawing the line at another angle, of 
staking the path along new courses, of marking a 
new point of departure from which others who 
come after him will set out upon their journey. 
If you ask how he is to know when one in- ;’ 
terest outweighs another, I can only answer that j | 
: he must get his knowledge just as the legislator ‘ 
gets it, from experience and study and reflection; — 
in brief, from life itself. Here, indeed, is the * 
point of contact between the legislator’s work 
and his. The choice of methods, the appraisement 
of values, must in the end be guided by like 
considerations for the one as for the other. Each 
indeed is legislating within the limits of his 
competence. No doubt the limits for the judge | 
are narrower. He legislates only between gaps. | 
He fills the open spaces in the law. How far he 


113 


THE JUDGE AS A LEGISLATOR 
may go without traveling beyond the walls of 
the interstices cannot be staked out. for him 
upon a chart. He must learn it for himself as he 
gains the sense of fitness and proportion that 
comes with years of habitude in the practice of 
an art. Even within the gaps, restrictions not 
easy to define, but felt, however impalpable they 
may be, by every judge and lawyer, hedge and 
circumscribe his action. They are established by 
the traditions of the centuries, by the example 
of other judges, his predecessors and his col- 
leagues, by the collective judgment of the pro- 
fession, and by the duty of adherence to the 
pervading spirit of the law. “Il ne_peut inter- 
venir,” says Charmont,”* “que pour suppléer les 
sources formelles, mais il n’a pas, dans cette 
mesure méme, toute latitude pour créer des 
régles de droit. Il ne peut ni faire échec aux 
principes généraux de notre organisation juri- 
dique, explicitement on implicitement consacrés, 
ni formuler une réglementation de detail pour 


l’exercise de certains droits, en établissant des 


24 “Ta Renaissance du droit naturel,” p. 181. 


II4 


THE JUDGE AS A LEGISLATOR 


délais, des formalités, des régles de publicité.’’® 
None the less, within the confines of these open’ 3 
spaces and those of precedent and tradition, 
choice moves with a freedom which stamps its 
action as creative. The law which is the resulting 
product is not found, but made. The process, 


being legislative, demands the legislator’s wisdom. 


25 “Fie may intervene only to supplement the formal 
authorities, and even in that field there are limits to his 
discretion in establishing rules of law. He may neither 
restrict the scope of the general principles of our juridi- 
cal organization, explicitly or implicitly sanctioned, nor 
may he lay down detailed regulations governing the 
exercise of given rights, by. introducing delays, 
formalities, or rules of publicity..—Charmont, supra, 
transl. in 7 Modern Legal Philosophy Series, p. 120, sec. 
o1. Cf. Jhering, “Law as a Means to an End” (5 Modern 
Legal Philosophy Series: Introduction by W. M. Gel- 
dart, p. xlvi): “The purposes of law are embodied in 
legal conceptions which must develop in independ- 
ence and cannot at every step be called upon to 
conform to particular needs. Otherwise system and 
certainty would be unattainable. But this autonomy of 
law, if it were only because of excess or defects of 
logic, will lead to a divergence between law and the 
needs of life, which from time to time calls for correc- 
tion. . . . How far if at all the needful changes can 
or ought to be carried out by judicial decisions or the 
development of legal theory, and how far the interven- 
tion of the legislator will be called for, is a matter that 
will vary from one legal territory to another according 
to the accepted traditions as to the binding force of 


II5 


THE JUDGE AS A LEGISLATOR 


There is in truth nothing revolutionary or 
even novel in this view of the judicial function.” 
It is the way that courts have gone about their 
business for centuries in the development of the 
common law. The difference from age to age is 
not so much in the recognition of the need that 
law shall conform itself to an end. It is rather 
in the nature of the end to which there has been 
need to conform. There have been periods when 
uniformity, even rigidity, the elimination of the 
personal element, were felt to be the paramount 
needs.?’ By a sort of paradox, the end was best 
served by disregarding it and thinking only of 
the means. Gradually the need of a more flexible 
system asserted itself. Often the gap between 
the old rule and the new was bridged by the 
pious fraud of a fiction.” The thing which con- 
cerns us here is that it was bridged whenever the 
precedents, the character of the enacted law, and the 
wider or narrower liberty of judicial interpretation.” 

26 Cf. Berolzheimer, 9 Modern Legal Philosophy 
Series, pp. 167, 168. 

27 Flavius, supra, p. 49; 2 Pollock and Maitland, 


“History of English Law,” p. 561. 
28 Smith, “Surviving Fictions,” 27 Yale L. J., 147; 


116 


THE JUDGE AS A LEGISLATOR 


Be artarice of the end was dominant. Today the 
use of fictions has declined; and the springs of 
action are disclosed where once they were con- 
cealed. Even now, they are not fully known, 
however, even to those whom they control. Much 
_of the process has been unconscious or nearly so. 
The ends to which courts have addressed them- 


| nn ICL sn oy aseainse si tc ps PEDERI RED Rae se 
selves, the reasons and motives that have guided 





I" 


them, have often been vaguely felt, intuitively 


or_almost intuitively a “apprehended, seldom. ex- 
plicitly avowed. There has been little of de- 
liberate introspection, of dissection, of analysis, 
of philosophizing. The result has been an amal- 
gam of which the ingredients were unknown or 
forgotten. That is why there is something of a 
shock in the discovery that legislative policy has 
made the compound what it is. “We do not 


317; Ehrlich, supra, pp. 227, 228; Saleilles, “De la 
Pérsonnalité Juridique,” p. 382. 

“Lorsque la loi sanctionne certains rapports juridiques, 
a lexclusion de tels autres qui en différent, il arrive, pour 
tels ou tels rapports de droit plus ou moins similaires 
auxquels on sent le besoin d’étendre la protection légale, 
que l’on est tenté de procéder, soit par analogie, soit par 
fiction. La fiction est une analogie un peu amplifice, ou 
plutét non dissimulée.”—Saleilles, supra. 


117 


THE JUDGE AS A LEGISLATOR 


realize,” says Holmes,” “how large a part of 
our law is open to reconsideration aii. a_slight 
change i in the habit of the public mind. No con- 
crete proposition is “self-evident, no matter how 
ready we may be to accept it, not even Mr. Her- 
bert Spencer’s every man has a right to do what 
he wills, provided he interferes not with a like 
right on the part of his neighbors.” “Why,” he 
continues, “is a false and injurious statement 
privileged, if it is made honestly in giving in- 
formation about a servant? It is because it has 
been thought more important that information 
should be given freely, than that a man should 
be protected from what under other circum- 
stances would be an actionable wrong.. Why is 
a man at liberty to set up a business which he 
knows will ruin his neighbor? It is because the 
public good is supposed to be best subserved by 
free competition. Obviously such judgments of 
relative importance may vary in different times 
and places. . . . I think that the judges them- 


selves have failed adequately to recognize their 


29“The Path of the Law,” 10 Harvard L. R. 466. 
118 


THE JUDGE AS A LEGISLATOR 


duty of weighing considerations of social advan- 
tage. The duty is inevitable, and the result of 
the often proclaimed judicial aversion to deal 
with such considerations'is simply to leave the 
very ground and foundation of judgments in- 
articulate, and often unconscious, as I have 
said.” 

Not only in our common law system has this 
conception made its way. Even in other systems 
where the power of judicial initiative is more 
closely limited by statute, a like development is 
in the air. Everywhere there is growing emphasis 
on the analogy between the function of the 
judge and the function of the legislator. I may 
instance Francois Gény who has developed the 
analogy with boldness and suggestive power.*° 
“A priori,” he says, “‘the process of research (la 
recherche), which is imposed upon the judge in 
finding the law seems to us very analogous to 
that incumbent on the legislator himself. Except 
for this circumstance, certainly not negligible, 


and yet of secondary importance, that the process 
30 Op. cit., vol. II, p. 77. 
119 


THE JUDGE AS A LEGISLATOR 


is set in motion by some concrete situation, and 
in order to adapt the law to that situation, the 
considerations which ought to guide it are, in 
respect of the final end to be attained, exactly of 
the same nature as those which ought to domi- 
nate legislative action itself, since it is a question 
in each case, of satisfying, as best may be, justice 
and social utility by.an appropriate rule. Hence, 
I will not hesitate in the silence or inadequacy 
of formal sources, to indicate/as the general line 
of direction for the judge the following: that he 
ought to shape his judgment of the law in obe- 
dience to the same aims which would be those of 
a legislator who was proposing to himself to 
regulate. the question. None the less, an impor- 
tant distinction sepatates here judicial from 
legislative activity. While the legislator is not 
hampered by any limitations in the appreciation 
of a general situation, which he regulates in a] 
manner altogether abstract, the judge, who de- 
cides in view of particular cases, and with refer- 
ence to problems absolutely concrete, ought, in| — 
adherence to the spirit of our modern organiza- \ 


I20 


THE JUDGE AS A LEGISLATOR 


tion, and in order to escape the dangers of 
arbitrary action, to disengage himself, so far as 
possible, of every influence that is personal or 
that comes from the particular situation which 
is presented to him, and base his judicial decision 
on elements of an objective nature. And that is 
why the activity which is proper to him has 
seemed to me capable of being justly qualified: 
free scientific research, libre recherche sct- 
entifique: free, since it is here removed from the 
action of positive authority; scientific, at the 
same time, because it can find its solid founda- 
tions only in the objective elements which science 
alone is able to reveal to it.’’** 

The rationale of the modern viewpoint has 
been admirably expressed by Vander Eycken*? 
in his “Méthode positive de 1l’Interprétation 
juridique”:** “Formerly men looked upon law 
as the product of the conscious will of the 


legislator. Today they see in it a natural force. 


81 Ehrlich has the same thought, “Die juristische 


Logik,” p. 312. 
82 Professor in the University of Brussels. 
83 P, 401, Se€C. 230. 


I2T 


THE JUDGE AS A LEGISLATOR 


If, however, we can attribute to law the epithet 
‘natural,’ it is, as we have said, in a different 
sense from that which formerly attached to thé~ 
expression ‘natural law.’ That expression then 
meant that nature had imprinted in us, as one 
of the very elements of reason, certain principles 
of which all the articles of the code were only 
the application. The same expression ought to 
mean today that law springs from the relations 
of fact which exist between things. Like those 
relations themselves, natural law is in perpetual 
travail. It is no longer in texts or in systems de- 
rived from reason that we must look for th 
source of law; it is in social utility, in the neces- 
sity that certain consequences shall be attached 
to given hypotheses. The legislator has only a 
fragmentary consciousness of this law; he trans- 
lates it by the rules which he prescribes. When 
the question is one of fixing the meaning of those 
rules, where ought we to search? Manifestly at 
their source; that is to say, in the exigencies of 
social life. There resides the strongest proba- 
bility of discovering the sense of the law. In the 


I22 





THE JUDGE AS A LEGISLATOR 


same way when the question is one of supplying 
the gaps in the law, it is not of logical deduc- 
tions, it is rather of social needs, that we are to 
ask the solution.” 

Many of the gaps have been filled in the de- 
velopment of the common law by borrowing from 
other systems. Whole titles in our jurisprudence 
have been taken from the law of Rome. Some of 
the greatest of our judges—Mansfield in Eng- 
land, Kent and Story here—were never weary 
of supporting their judgments by citations from 
the Digest. We should be traveling too far afield 
if we were to attempt an estimate of the extent 
to which the law of Rome has modified the 
common law either in England or with us.** 
Authority it never had. The great historic move- 
ment of the Reception did not touch the British 
Isles.*° Analogies have been supplied. Lines of 
thought have been suggested. Wise solutions 


84 Qn this subject, see Sherman, “Roman Law in the 
Modern World”; Scrutton, “Roman Law Influence,” 
1 Select Essays in Anglo-Am. Legal Hist. 208. 

85 y Pollock and Maitland’s “History of English Law,” 
88, 114; Maitland’s “Introduction to Gierke,” supra, 
p. xii. 


123 


THE JUDGE AS A LEGISLATOR 


have been offered for problems otherwise in- 
soluble. None the less, the function of the for- 
eign system has been to advise rather than to 
command. It has not furnished a new method. It 
has given the raw material to be utilized by 
methods already considered—the methods of 
philosophy and history and sociology—in the 
moulding of their products. It is only one com- 
partment in the great reservoir of social expe- 
rience and truth and wisdom from which the 
judges of the common law must draw their in- 
_ spiration and their knowledge. | 

In thus recognizing, as I do, that the power 
to declare the law carries with it the power, and 
within limits the duty, to make law when none 
exists, I do not mean to range myself with the 
jurists who seem to hold that in reality there is 
no law except the decisions of the courts. I 
think the truth is midway between the extremes 
that are represented at one end by Coke and 
Hale and Blackstone and at the other by such 
authors as Austin and Holland and Gray and 
Jethro Brown. The theory of the older writers 


124 


THE JUDGE AS A LEGISLATOR 


was that judges did not legislate at all. A pre- 
existing rule was there, imbedded, if concealed, 
in the body of the customary law. All that the 
judges did, was to throw off the wrappings, and 
expose the statue to our view.*® Since the days 
- of Bentham and Austin, no one, it is believed, 
has accepted this theory without deduction or 
reserve, though even in modern decisions we find 
traces of its lingering influence. Today there is 
rather danger of another though an opposite 
error. From holding that the law-is-never ‘made 
by judges, the votaries of the Austinian analysis 
have been led at times to the conclusion that it is 
never made by anyone else. Customs, no matter 
how firmly established, are not law, they say, i 
until adopted by the courts.*’ Even statutes are | 
not law because the courts must fix their mean- | 
ing. That is the view of Gray in his “Nature and 


Sources of the Law.’** “The true view, as I 


36 Cf. Pound, 27 Harvard L. R. 731, 733. 

37 Austin, “Jurisprudence,” vol. I, 37, 104; Holland, 
“Jurisprudence,” p. 54; W. Jethro Brown, “The Aus- 
’ tinian Theory of Law,” p. 311. 

88 Sec. 602. 


125 


THE JUDGE AS A LEGISLATOR 


submit,” he says, “is that the Law is what the 
Judges declare; that statutes, precedents, the 
_ opinions of learned experts, customs and morality 
are the sources of the Law.’°? So, Jethro Brown 
ina paper on “Lawand Evolution,’*® tells us that 
a statute, till construed, is not real law. It is only 
“ostensible” law. Real law, he says, is not found 
anywhere except in the judgment of a court. In 
that view, even past decisions are not law. The 
courts may overrule them. For the same reason 
present decisions are not law, except for the 
parties litigant. Men go about their business from 
day to day, and govern their conduct by an zgnis 
fatuus. The rules to which they yield obedience 
are in truth not law at all. Law never is, but is 
always about to be. It is realized only when 
embodied in a judgment, and in being realized, 
expires. There are no such things as rules or 
principles: there are only isolated dooms. | 

A definition of law which in effect denies the 


possibility of law since it denies the possibility of 


89 Cf. Gray, supra, secs. 276, 366, 369. 
40 29 Yale L. J. 304. 


126 


os, 


THE JUDGE AS A LEGISLATOR 


rules of general operation,** must contain within 
itself the seeds of fallacy and error. Analysis is 
useless if it destroys what it is intended to ex- 
plain. Law and obedience to law are facts con- 
firmed every day to us all in our experience of 
life. If the result of a definition is to make them 
seem to be illusions, so much the worse for the 
definition; we must enlarge it till it is broad 
enough to answer to realities. The outstanding 
truths of life, the great and unquestioned 
phenomena of society, are not to be argued away 
as myths and vagaries when they do not fit 
within our little moulds. If necessary, we must 
remake the moulds. We must seek a conception 
_of law which realism can accept as true. Statutes 
do not cease to be law because the power to 
fix their meaning in case of doubt or ambiguity 
has been confided to the courts. One might as 
well say for like reasons that contracts have no 
reality as expressions of a contracting will. The 
quality of law is not withdrawn from all prece- 


dents, however well established, because courts 


41 Cf. Beale, “Conflict of Laws,” p. 153, sec. 129. 


127 


THE JUDGE AS A LEGISLATOR 


sometimes exercise the privilege of overruling 
their own decisions. Those, I think, are the con- 
clusions to which a sense of realism must lead 
us. No doubt there is a field within which judicial 
judgment moves untrammeled by fixed princi- 
ples. Obscurity of statute or of precedent or of 
customs or of morals, or collision between some 
or all of them, may leave the law unsettled, and 
cast a duty upon the courts to declare it retro- 
spectively in the’ exercise of a power frankly 
legislative in function. In such cases, all that 

the parties to the controversy can do is to fore- 
cast the declaration of the rule as best they can, 
and govern themselves accordingly. We must 
not let these occasional and relatively rare in- 
stances blind our eyes to the innumerable in- 
stances where there is neither obscurity nor 
collision nor opportunity for diverse judgment. 
Most of us live our lives in conscious submission 
to rules of law, yet without necessity of resort 
to the courts to ascertain our rights and duties. 
Lawsuits are rare and catastrophic experiences 
for the vast majority of men, and even when the 


128 


THE JUDGE AS A LEGISLATOR 


catastrophe ensues, the controversy relates most 
often not to the law, but to the facts. In count- 
less litigations, the law is so clear that judges 
have no discretion. They “have the ‘right to Tegis- 
Tate within ¢ gaps, but often en there a are no gaps. We 
. “shall b have a false view of the landscape if we 
look at Gisaeithe daste ‘spaces only, 2 and refuse to see 
the acres already sown and fruitful. I think the 
difficulty has its origin in the failure to distin- 
guish between right and power, between the 
command embodied in a judgment and the jural 
principle to which the obedience of the judge is 


due. Judges have, of course, the power, though 


not the right, to ignore the mandate of a statute, | 


and render judgment in despite of it. They have 
the power, though not the right, to travel beyond 
the walls of the interstices, the bounds set to 
judicial innovation by precedent and custom. 
None the less, by that abuse of power, they vio- 
late the law. If they violate it willfully, i.e., with 
guilty and evil mind, they commit a legal wrong, 
and may be removed or punished even though 
the judgments which they have rendered stand. 


129 


THE JUDGE AS A LEGISLATOR 


In brief, there are jural principles which limit 
the freedom of the judge,** and, indeed, in the 
view of some writers, which we do not need to 
endorse, the freedom of the state itself.** Life 
may be lived, conduct may be ordered, it is lived 
and ordered, for unnumbered human beings 
without bringing them within the field where 
the law can be misread, unless indeed the mis- 
reading be accompanied by conscious abuse of 
power. Their conduct never touches the border- 
land, the penumbra, where controversy begins. 
They go from birth to death, their action 
restrained at every turn by the power of the 
state, and not once do they appeal to judges to 
mark the boundaries between right and wrong. 
I am unable to withhold the name of law from 
rules which exercise this compulsion over the 
fortunes of mankind.** ; 


42 Salmond, “Jurisprudence,” p. 157; Sadler, “Rela- 
tion of Law to Custom,” pp. 4, 6, 50; F. A. Geer, 
9 L. Q. R. 153. 

43 Duguit, “Law and The State,” 31 Harvard L. R. 1; 
Vinogradoff, “The Crisis of Modern Jurisprudence,” 
29 Yale L. J. 312; Laski, “Authority in the Modern 
State,” pp. 41, 42. 

44“Law is the body of general principles and of 


130 


THE JUDGE AS A LEGISLATOR 

The old Blackstonian theory of pre-existing 
rules of law which judges found, but did not 
make, fitted in with a theory still more ancient, 
the theory of a law of nature. The growth of 
that conception forms a long and interesting 
chapter in the history of jurisprudence and 
political science.*® The doctrine reached its high- 
est development with the Stoics, has persisted in 
varying phases through the centuries, and im- 
bedding itself deeply in common forms of speech 
and thought, has profoundly influenced the 
speculations and ideals of men in statecraft and 
in law. For a time, with the rise and dominance 
of the analytical school of jurists, it seemed dis- 
credited and abandoned.** Recent juristic thought 
has given it a new currency, though in a form so 


profoundly altered that the old theory survives 


particular rules in accordance with which civil rights 
are created and regulated, and wrongs prevented or re- 
dressed” (Beale, “Conflict of Laws,” p. 132, sec. 114). 

45 Salmond, “The Law of Nature,” 11 L. Q. R. 121; 
Pollock, “The History of the Law of Nature,” 1 Colum- 
bia L. R. 11; 2 Lowell, “The Government of England,” 
477, 478; Maitland’s “Collected Papers,” p. 23. 

46 Cf, Ritchie, “Natural Rights.” 


131 


THE JUDGE AS A LEGISLATOR 


in little more than name.*” The law of nature is 
no longer conceived of as something static and 
eternal. It does not override human or positive 
law. It is the stuff out of which human or positive 
law is to be woven, when other sources fail.*® 
“The modern philosophy of law comes in contact 
with the natural law philosophy in that the one 
as well as the other seeks to be the science of 
the just. But the modern philosophy of law de-: 
parts essentially from the natural-law philosophy 
in that the latter seeks a just, natural law out- 
side of positive law, while the new philosophy of 
law desires to deduce and fix the element of the 
just in and out of the positive law—out of what 
it is and of what it is becoming. The natural law 
school seeks an absolute, ideal law, ‘natural law,’ 
the law kar’ e€oxynv, by the side of which 
‘positive law has only secondary importance. The 


47 Pound, 25 Harvard L. R. 162; Charmont, “La 
Renaissance du droit naturel,” passim; also transl., 7 
Modern Legal Philosophy Series, 106, 111; Demogue, 
“Analysis of Fundamental Notions,’ 7 Modern Legal 
Philosophy Series, p. 373, sec. 212; Laski, “Authority 
in the Modern State,” p. 64. 

48 Vander Eycken, op. cit., p. 401. 


132 


THE JUDGE AS A LEGISLATOR 
modern philosophy of law recognizes that there 
is only one law, the positive law, but it seeks its 
ideal side, and its enduring idea.”** I am not 
concerned to vindicate the accuracy of the 
nomenclature by which the dictates of reason 
and conscience which the judge is under a duty 
to obey, are given the name of law before he has 
embodied them in a judgment and set the im- 
_ primatur of the law upon them.*° I shall not be 
troubled if we say with Austin and Holland and 
Gray and many others that till then they are 
moral precepts, and nothing more. Such verbal 
disputations do not greatly interest me. What 
really matters is this, that the judge is under a 
duty, within the limits of his. power. of innova- 
tion, to maintain a relation between law and 


morals, between the precepts of jurisprudence 


49 Berolzheimer, “System der Rechts und Wirth- 
schaftsphilosophie,” vol. II, 27, quoted by Pound, “Scope 
and Purpose of Sociological Jurisprudence,” 24 Harvard 
L. R. 607; also Isaacs, “The Schools of Jurisprudence,” 
31 Harvard L. R. 373, 389; and for the mediaeval 
view, Maitland’s “Gierke, Political Theories of the 
Middle Age,” pp. 75, 84, 93, 173. 

5° Holland, “Jurisprudence,” p. 54. 


133 


THE JUDGE AS A LEGISLATOR 
and those of reason and good conscience. I nak 
pose it is true in a certain sense that this duty 
was never doubted." One feels at times, however, 
that it was obscured by the analytical jurists, 
who, in stressing verbal niceties of definition, 
- made a corresponding sacrifice of emphasis upon 
the deeper and finer realities of ends and aims 
and functions. The constant insistence that 
morality and justice are not law, has tended to 
breed distrust and contempt of law as something 
to which morality and justice are not merely 
alien, but hostile. The new development of 
“naturrecht” may be pardoned infelicities of 
phrase, if it introduces us to new felicities of 
methods and ideals. Not for us the barren 
logomachy that dwells upon the contrasts be- 
tween law and justice, and forgets their deeper 
harmonies. For us rather the trumpet call of 
the French “code civil”:°? “Le juge, qui refusera 
de juger, sous prétexte du silence, de l’obscurité 


51 See Gray, supra, p. 286, secs. 644, 645. 

52 Art. 4; Gray, supra, sec. 642; Gény, op. cit., vol. 
II, p. 75, sec. 155; Gnaeus Flavius, “Der Kampf um die 
Rechtswissenschaft,” p. 14. 


134 


THE JUDGE AS A LEGISLATOR 


ou de l’insuffisance de la loi, pourra étre pour- 
Suivi comme coupable de déni de justice.”** “It 
is the function of our courts,” says an acute 
critic, “to keep the doctrines up to date with} 
the mores by continual restatement and by giv- 
_ ing them a continually new content. This is 
judicial legislation, and the judge legislates at 
his peril. Nevertheless, it is the necessity and 
duty of such legislation that gives to judicial 
office its highest honor; and no brave and honest 
judge shirks the duty or fears the peril.’””** es 
You may say that there is no assurance that 
judges will interpret the mores of their day more 
wisely and truly than other men. I am not dis- 
posed to deny this, but in my view it is quite 
beside the point. The point is rather that this 
power of interpretation must be lodged some- 
where, and the custom of the constitution has 
lodged it in the judges. If they are to fulfill their 


53“The judge who shall refuse to give judgment 
under pretext of the silence, of the obscurity, or of 
the inadequacy of the law, shall be subject to prosecu- 
tion as guilty of a denial of justice.” 

54 Arthur L. Corbin, 29 Yale L. J. 771. 


135 


THE JUDGE AS A LEGISLATOR 
function as judges, it could hardly be lodged else- 
where. Their conclusions must, indeed, be subject 
to constant testing and retesting, revision and 
readjustment; but if they act with conscience 
and intelligence, they ought to attain in their 
conclusions a fair average of truth and wisdom. 
The recognition of this power and duty to shape 
the law in conformity with the customary moral- 
ity, is something far removed from the destruc- 
tion of all rules and the substitution in every 
instance of the individual sense of justice, the 
arbitrium boni viri.’ That might result in a 
benevolent despotism if the judges were benevo- 
lent men. It would put an end to the reign of law. 
The method of sociology, even though applied 
with greater freedom than in the past, is heading 
us toward no such cataclysm. The form and 
structure of the organism are fixed. The cells in 
which there is motion do not change the pro- 
portions of the mass. Insignificant is the power 


of innovation of any judge, when compared with 


55 Cf. Standard Chemical Corp. v. Waugh Corp., 231 
N. Y. 51, 55. 


136 


THE JUDGE AS A LEGISLATOR 
the bulk and pressure of the rules that hedge 
him on every side. Innovate, however, to some 
extent, he must, for with new conditions there 
must be new rules. All that the method o 
sociology demands is that within this narrow 
_ range of choice, he shall search for social justice. 
There were stages in the history of the law when 
a method less psychological was needed. The 
old quantitative tests of truth did not fail in 
their day to serve the social needs.** Their day 
has long passed. Modern juristic thought, turn- 
ing in upon itself, subjecting the judicial process 
to introspective scrutiny, may have given us a 
new terminology and a new emphasis. But in 
truth its method is not new. It is the method of 
the great chancellors, who without sacrificing 
uniformity and certainty, built up the system of 
equity with constant appeal to the teachings of 
right reason and conscience. It is the method by 


which the common law has renewed its life at 


56 Flavius, “Der Kampf um die Rechtswissenschaft,” 
pp. 48, 49; Ehrlich, “Die juristische Logik,” pp. 201, 
292. 


137 


THE JUDGE AS A LEGISLATOR 

the hands of its great masters—the method of 
Mansfield and Marshall and Kent and Holmes. 

There have, indeed, been movements, and in 
our own day, to make the individual sense of 
justice in law as well as in morals the sole 
criterion of right and wrong. We are invited, 
in Gény’s phrase, to establish a system of 
“juridical anarchy” at worst, or of “judicial im- 
pressionism” at best.°’ The experiment, or some- 
thing at least approaching it, was tried not long 
ago in France. There are sponsors of a like creed 
among the critics of our own courts.°* The 
French experiment, which has become known as 
“le phénoméne Magnaud,” is the subject of a 
chapter in the epilogue to the last edition, pub- 
lished in 1919, of Gény’s brilliant book.*® Be- 
tween 1889 and 1904, the tribunal of the first 


57 Gény, op. cit., ed. of 1919, vol. II, p. 288, sec. 196; 
Pp. 305, sec. 200. 

58 Bruce, “Judicial Buncombe in North Dakota and 
Other States,” 88 Central L. J. 136; Judge Robinson’s 
Reply, 88 id. 155; “Rule and Discretion in the Ad- — 
ministration of Justice,’ 33 Harvard L. R. 792. 

59 Gény, op. cit., ed. of 1919, vol. II, p. 287, sec. 196, 
et seq. 


138 


THE JUDGE AS A LEGISLATOR 
instance of Chateau-Thierry, following the lead 


of its chief, le President Magnaud, initiated a 
revolt against the existing order in jurisprudence. 
Its members became known as the good judges, 
“les bons juges.”’ They seem to have asked them- 
selves in every instance what in the circum- 
stances before them a good man would wish to 
do, and to have rendered judgment accordingly. 
Sometimes this was done in the face of incon- 


sistent statutes. I do not profess to know their 


work at first hand. Gény condemns it, and says | 


the movement has spent its force. Whatever the 
merits or demerits of such impressionism may be, 
that is not the judicial process as we know it in 
our law.®° Our jurisprudence has held fast to 
Kant’s categorical imperative, “Act on a maxim 
which thou canst will to be law universal.” It 
has refused to sacrifice the larger and more in- 
clusive good to the narrower and smaller. A con- 
tract is made. Performance is burdensome and 
perhaps oppressive. If we were to consider .only 
the individual instance, we might be ready to 
60 Salmond, “Jurisprudence,” pp. 19, 20. 


139 


Prawn 






THE JUDGE AS A LEGISLATOR 
release the promisor. We look beyond the par- 
ticular to the universal, and shape our judgment 
in obedience to the fundamental interest of 
society that contracts shall be fulfilled. There is 
a wide gap between the use of the individual 
sentiment of justice as a substitute for law, and 
its use as one of the tests and touchstones in — 
construing or extending law. I think the tone and 
temper in which the modern judge should | 
about his task are well expressed in the first 
article of the Swiss Civil Code of 1907, an 
article around which there has grown up a large 
ody of juristic commentary. “The statute,” says 
the Swiss Code, “governs all matters within the 
letter or the spirit of any of its mandates. In 
default of an applicable statute, the judge is to 
pronounce judgment according to the customary 
law, and in default of a custom according to the 
rules which he would establish if he were to 
assume the part of a legislator. He is to draw 
his inspiration, however, from the solutions con- 
secrated by the doctrine of the learned and the 
jurisprudence of the courts—par la doctrine et 


140 


THE JUDGE AS A LEGISLATOR 


la jurisprudence.”** There, in the final precept, 
is the gist of the difference between “le phé- 
noméne Magnaud,” and justice according to 
law. The judge, even when he is free, is still .not 
wholly free. He is not to innovate.at-pleasure. 
He is not a knight-errant, roaming at will in 
’ pursuit of his own ideal of beauty or of goodness. 
He is to draw his inspiration from consecrated 
principles. He is not to yield to spasmodic senti- 
ment, to vague and unregulated benevolence. 
He is to exercise a discretion informed by tradi- 
tion, methodized by analogy, disciplined by sys- 
tem, and subordinated to “the primordial. neces- 
‘sity of order in the social life.”*? Wide enough 
in all conscience is the field of discretion that 


remains. 
61 Gény, op. cit., II, p. 213; also Perick, “The Swiss 


Code,” XI, Continental Legal Hist. Series, p. 238, sec. 5. 
62 Gény, op. cit., II, p. 303, sec. 200. 


I4I 


Lecture IV. Adherence to Precedent. 
The Subconscious Element in the 


Judicial Process. Conclusion 


HE system of law-making by judicial deci- 
sions which supply the rule for transac- 


tions closed before the decision was announced, 
would indeed be intolerable in its hardship and 
oppression if natural law, in the sense in which 
I have used the term, did not supply the main 
rule of judgment to the judge when precedent 
and custom fail or are displaced. Acquiescence 
in such a method has its basis in the belief that 
when the law has left the situation uncovered 
by any pre-existing rule, there is nothing to do 
except to have some impartial arbiter declare 
what fair and reasonable men, mindful of the 
habits of life of the community, and. of. the 
standards of justice and fair dealing prevalent 
among them, ought in such circumstances to do, 
with no rules except those of custom and con- 


142 


ADHERENCE TO PRECEDENT 


science to regulate their conduct. The feeling is 
that nine ‘times out of. ten, if not oftener, the 
conduct of right-minded men would not have 
been different if the rule embodied in the decision 


had been announced by statute in advance. In 


_ the small minority of cases, where ignorance has 


counted, it is as likely to have affected one side 
as the other; and since a controversy has arisen 
and must be determined somehow, there is noth- 
ing to do, in default of a rule already made, but 
to constitute some authority which will make 
it after the event. Some one must be the loser; 
it is part of the game of life; we have to pay 
in countless ways for the absence of prophetic 
vision. No doubt the ideal system, if it were 
attainable, would be a code at once so flexible 
and so minute, as to supply in advance for 
every conceivable situation the just and fitting 
rule. But life is too complex to bring the attain- 
ment of this ideal within the compass of human 
powers. We must recognize the truth, says Gény,* 
that the will (Ja volonté) which inspires a statute 
1 Op. cit., preface, p. xvi. 
143 


ADHERENCE TO PRECEDENT 


“extends only over a domain of concrete facts, 
very narrow and very limited. Almost always, a 
statute has only a single point in view. All 
history demonstrates that legislation intervenes 
only when a definite abuse has disclosed _ itself, 
through the excess of which public feeling has 
finally been aroused. When the legislator inter- 
poses, it is to put an end to such and such facts, 
very clearly determined, which have provoked 
his decision. And if, to reach his goal, he thinks 
it proper to proceed along the path of general 
ideas and abstract formulas, the principles that 
he announces have value, in his thought, only in 
the measure in which they are applicable to the 
evils which it was his effort to destroy, and to 
similar conditions which would tend to spring 
from them. As for other logical consequences to 
be deduced from these principles, the legislator 
has not suspected them; some, perhaps many, 
if he had foreseen, he would not have hesi- 
tated to repudiate. In consecrating them, no 
one can claim either to be following his will or to 
be bowing to his judgment. All that one does 
P44 


ADHERENCE TO PRECEDENT 


thereby is to develop a principle, henceforth 
isolated and independent of the will which 
created it, to transform it into a new entity, 
which in turn develops of itself, and to give it 
an independent life, regardless of the will of the 
_ legislator and most often in despite of it.” These 
are the words of a French jurist, writing of a 
legal system founded on a code. The gaps in- 
evitable in such a system must, at least in equal 
measure, be inevitable in a system of case law 
built up, haphazard, through the controversies 
of litigants.? In each system, hardship must at 
times result from postponement of the rule of 
action till a time when action is complete. It is 
one of the consequences of the limitations of the 
human intellect and of the denial to legislators 
and judges of infinite prevision. But the truth is, 
as I have said, that even when there is ignorance 
of the rule, the cases are few in which ignorance 
has determined conduct. Most often the con- 


troversy arises about something that would 


2 Pollock, “Essays in Jurisprudence and Ethics; The 
Science of Case Law,” p. 241. 


145 


ADHERENCE TO PRECEDENT 


have happened anyhow. An automobile is manu- 
factured with defective wheels. The question is 
whether the manufacturer owes a duty of in- 
spection to anyone except the buyer.*? The oc- 
cupant of the car, injured because of the defect, 
presses one view upon the court; the manu- 
facturer, another. There is small chance, which- 
ever party prevails, that conduct would have 
been different if the rule had been known in 
advance. The manufacturer did not say to him- 
self, “I will not inspect these wheels, because that 
is not my duty.” Admittedly, it was his duty, at 
least toward the immediate buyer. A wrong in 
any event has been done. The question is to 
what extent it shall entail unpleasant conse- 
quences on the wrongdoer. 

I say, therefore, that in the vast majority of | 
cases the retrospective effect of judge-made law 
is felt either to involve no hardship or only such 
hardship as is inevitable where no rule has been 
declared. I think it is significant that when the 
hardship is felt to be too great or to be un- 

3 MacPherson v. Buick Motor Co., 217 N. Y. 382. 

146 


ADHERENCE TO PRECEDENT 


necessary, retrospective operation is withheld. 
Take the cases where a court of final appeal has 
declared a statute void, and afterwards, reversing 
itself, declares the statute valid. Intervening 
transactions have been governed by the first 
decision. What shall be said of the validity of 
such transactions when the decision is overruled? 
Most courts in a spirit of realism have held that 
the operation of the statute has been suspended 
in the interval.* It may be hard to square such 
a ruling with abstract dogmas and definitions. 
When so much else that a court does, is done 
with retroactive force, why draw the line here? 
The answer is, I think, that the line is drawn 
here, because the injustice and oppression of a 
refusal to draw it would be so great as to be in- 


tolerable. We will not help out the man who has 


* Harris v. Jex, 55 N. Y. 421; Gelpcke v. Dubuque, 
z Wall. 125; Holmes, J., in Kuhn v. Fairmount Coal 
Co., 215 U. S. 349, 371; 29 Harvard L. R. 80, 103; 
-Danchey Co. v. Farmy, 105 Misc. 470; Freeman, 
“Retroactive Operation of Decisions,’ 18 Columbia 
L. R. p. 230; Gray, supra, secs. 547, 548; Carpenter, 
“Court Decisions and the Common Law,” 17 Columbia 
L.R. 593. 


147 


ADHERENCE TO PRECEDENT 


trusted to the judgment of some inferior court.® 
In his case, the chance of miscalculation is felt 
to be a fair risk of the game of life, not different 
in degree from the risk of any other misconcep- 
tion of right or duty. He knows that he has 
taken a chance, which caution often might have 
avoided. The judgment of a court of final appeal 
is felt to stand upon a different basis. I am not 
sure that any adequate distinction is to be drawn 
between a change of ruling in respect of the 
validity of a statute and a change of ruling in 
respect of the meaning or operation of a statute,® 
or even in respect of the meaning or operation 
of a rule of common law.” Where the line of 
division will some day be located, I will make no 
attempt to say. I feel assured, however, that its 
location, wherever it shall be, will be governed, 
not by metaphysical conceptions of the nature 
of judge-made law, nor by the fetich of some im- 


placable tenet, such as that of the division of 


5 Evans v. Supreme Council, 223 N. Y. 407, 503. 

6 Douglass v. County of Pike, ror U. S. 677. 

7Cf. Wigmore, “The Judicial Function,” Preface to 
9 Modern Legal Philosophy Series, pp. xxxvii, xxxviii. 


148 


ADHERENCE TO PRECEDENT 
governmental powers,* but by considerations of 
convenience, of utility, and of the deepest senti- 
ments of justice. 

In these days, there is a good deal of discus- 
‘sion whether the rule of adherence to precedent 


. ‘ought to be abandoned altogether.® I would not 


go so far myself. I think adherence to to precedent — 


should be the rule and not the exception. ji have 
already had occasion to dwell upon some of the 
considerations that sustain it. To these I may 
_add that the labor of judges would be increased 
almost to the breaking point if every past deci- 
sion could be reopened in every case, and one 
_could not lay one’s own course of bricks on the 
secure foundation of the courses laid by others 
who had gone before him. Perhaps the constitu- 
tion of my own court has tended to accentuate 
this belief. We have had ten judges, of. whom 


8 Laski, “Authority in the Modern State,” pp. 70, 71; 
Green, “Separation of Governmental Powers,” 29 Yale 
i J. 372. 

®“Rule and Discretion in the Administration of 
Justice,’ 33 Harvard L. R. 972; 29 Yale L. J. 909; 
34 Harvard L. R. 74; 9 Modern Legal Philosophy Series, 
Preface, p. xxxvi. 


149 


et ing 
piatsen es 
tet - = 


ADHERENCE TO PRECEDENT 
only seven sit at a time. It happens again and 
again, where the question is a close one, that a 
case which one week is decided one way might 
be decided another way the next if it were then. 
heard for the first time. The situation would, 
however, be intolerable if the weekly changes. in 
the composition of the court were accompanied 
by changes in its rulings. In such circumstances. 
there is nothing to do except to stand by the 
errors of our brethren of the week. before, 
whether we relish them or not. But I am ready 
to concede that the rule of adherence to prece- 
dent, though it ought not to be abandoned, ought 
~~to be in some degree relaxed. I think that when 
a rule, after it has been duly tested by experience, 
has been found to be inconsistent with the sense 
of justice or with the social welfare, there should 
be less hesitation in frank avowal and full aban- 
donment. We have had to do this sometimes in 
the field of constitutional law.*® Perhaps we 
should do so oftener in fields of private law 
where considerations of social utility are not so 
10 Klein v. Maravelas, 219 N. Y. 383. 
150 


ADHERENCE TO PRECEDENT 


aggressive and insistent. There should be greater 
readiness to abandon an untenable position when 
the rule to be discarded may not reasonably be 
supposed to have determined the conduct of the 
litigants, and particularly when in its origin it 
was the product of institutions or conditions 
which have gained a new significance or develop- 
ment with the progress of the years. In such cir- 
cumstances, the words of Wheeler, J., in Dwy v. 
Connecticut Co., 89 Conn. 74,99, express the tone 
and temper in which problems should be met: 
“That court best serves the law which recognizes 
that the rules of law which grew up in a remote 
- generation may, in the fullness of experience, be 
found to serve another generation badly, and wey 
which discards the old rule when it finds od 
another rule of law represents what should be ac] 
cording to the established and settled judgment 
of society, and no considerable property rights 
have become vested in reliance upon the old rule. 
It is thus great writers upon the common law 
have discovered the source and method of its 
growth, and in its growth found its health and 


151 


ADHERENCE TO PRECEDENT 


life. It is not and it should not be stationary. 
Change of this character should not be left to the 
legislature.” If judges have wofully misinter- 
preted the mores of their day, or if the mores 
of their day are no longer those of ours, they 
ought not to tie, in helpless submission, the hands 
of their successors. 

Let me offer one or two examples to make my 
meaning plainer. I offer them tentatively and 
without assurance that they are apt. They will 
be helpful none the less. The instance may be 
rejected, but the principle abides. 

It is a rule of the common law that a surety 
is discharged from liability if the time of pay- 
ment is extended by contract between the princi- 
pal debtor and the creditor without the surety’s 
consent. Even an extension for a single day will 
be sufficient to bring about that result.* With- 
out such an extension, the surety would have the 
privilege upon the maturity of the debt of mak- 
ing payment to the creditor, and demanding 
immediate subrogation to the latter’s remedies 

11N. Y. Life Ins. Co. v. Casey, 178 N. Y. 381. 


152 


ADHERENCE TO PRECEDENT 
against the principal. He must, therefore, it is 
said, be deemed to have suffered prejudice if, 
by extension of the due date, the right has been 
postponed. I have no doubt that this rule may 
justly be applied whenever the surety can show 
_ that the extension has resulted in actual damage, 
as where the principal in the interval has become 
insolvent, or the value of the security has been 
impaired, though even in such circumstances the 
measure of exoneration ought in justice to be de- 
termined by the extent of the damage suffered. 
Perhaps there might be justice in permitting 
exoneration whenever the surety had tendered 
payment of the debt, and demanded subrogation 
to the remedies against the debtor. Perhaps the 
burden of disproving prejudice ought to be cast 
upon the creditor. No such limitations have been 
recognized. The rule applies to cases where 
neither tender nor actual damage is established 
or pretended. The law has shaped its judgments 
upon the fictitious assumption that a surety, 
_ who has probably lain awake at nights for fear 


that payment may some day be demanded, has 


153 


ADHERENCE TO PRECEDENT 


in truth been smarting under the repressed de- 
sire to force an unwelcome payment on a reluc- 
tant or capricious creditor. The extended period 
has gone by; the surety has made no move, has 
not even troubled himself to inquire; yet he is 
held to be released on the theory that were it 
not for the extension, of which he knew nothing, 
and by which his conduct could not have been 
controlled, he would have come forward volun- 
tarily with a tender of the debt. Such rules are 
survivals of the days when commercial dealings 
were simpler, when surety companies were un- 
known, when sureties were commonly generous 
friends whose confidence had been abused, and 
when the main effort of the courts seems to have 
been to find some plausible excuse for letting 
them out of their engagements. Already I see 
some signs of a change of spirit in decisions of 
recent dates.’* I think we may well ask our- 


selves whether courts are not under a duty to go 


12 Wilkinson v. McKemmie, 229 U. S. 590, 593; 
U. S. v. McMullen, 222 U. S. 460, 468; Richardson v. 
County of Steuben, 226 N. Y. 13; Assets Realization Co. 
v. Roth, 226 N. Y. 370. 


154 


ADHERENCE TO PRECEDENT 


farther, and place this branch of the law upon 
a basis more consistent with the realities of 
business experience and the moralities of life. 

It is another rule of the common law that a 
parol agreement, though subsequently made, is 
ineffective to vary or discharge a contract under 
seal.‘° In days when seals counted for a good 
deal, there may have been some reason in this 
recognition of a mystical solemnity. In our day, 
when the perfunctory initials “L. S.” have re- 
placed the heraldic devices, the law is conscious 
of its own absurdity when it preserves the rubrics 
of a vanished era.** Judges have made worthy, 
if shamefaced, efforts, while giving lip service to 
the rule, to riddle it with exceptions and by 
distinctions reduce it to a shadow.’® A recent 
case suggests that timidity, and not reverence, 


has postponed the hour of dissolution.** The law 


13 McCreery v. Day, 119 N. Y. 1; 3 Williston on Con- 
tracts, secs. 1835, 1836. 

14 Harris v. Shorall, 230 N. Y. 343. 

15 McCreery v. Day, supra; Thomson v. Poor, 147 
N. Y. 402. 

16 Harris v. Shorall, supra. 


155 


ADHERENCE TO PRECEDENT 


will have cause for gratitude to the deliverer 
who will strike the fatal blow. 

I have drawn illustrations from the field of 
substantive law. The law of evidence and gen- 
erally the whole subject of procedure supply 
fields where change may properly be made with 
a freedom even greater. The considerations of 
policy that dictate adherence to existing rules 
where substantive rights are involved, apply 
with diminished force when it is a question of 
the law of remedies. Let me take an illustration 
from the law of evidence. A man is prosecuted 
for rape. His defense is that the woman con- 
sented. He may show that her reputation for 
chastity is bad. He may not show specific, even 
though repeated, acts of unchastity with another 
man or other men.*”? The one thing that any 
sensible trier of the facts would wish to know 
above all others in estimating the truth of his de-. 
fense, is held by an inflexible rule, to be some- 
thing that must be excluded from the considera- 
tion of the jury. Even though the woman takes 

17 People v. Carey, 223 N. Y. 5109. 

156 


ADHERENCE TO PRECEDENT 
the stand herself, the defendant is not greatly 


helped, for though he may then cross-examine 
her about other acts, he is concluded by her 
answer. Undoubtedly a judge should exercise a 
certain discretion in the admission of such evi- 
dence, should exclude it if too remote, and should 
be prompt by granting a continuance or other- 
wise to obviate any hardship resulting from 
surprise. That is not the effect of the present 
rule. The evidence is excluded altogether and 
always. Some courts, indeed, have taken a differ- 
ent view, but their number unfortunately is 
small. Here, as in many other branches of the 
law of evidence, we see an exaggerated reliance 
upon general reputation as a test for the ascer- 
tainment of the character of litigants or wit- 
nesses. Such a faith is a survival of more simple 
times. It was justified in days when men lived in 
small communities. Perhaps it has some justifica- 
tion even now in rural districts. In the life of 
great cities, it has made evidence of character a 
farce. Here, as in many other branches of adjec- 


tive law, a spirit of realism should bring about a 


157 


ADHERENCE TO PRECEDENT 


harmony between present rules and present 
needs. 

_ None the less, the tule of adherence to prece- 
| dent is applied with less rigidity in the United 
| States than in England, and, I _think,..with a 
? rigidity that is is ania even here.. The House 
of Lords  holds_ itself. absolutely .bound..by..its 
own prior decisions.** The United States Supreme 
Court and_ the. highest..courts.of .the..several 
states overrule their own prior decisions. when 
manifestly erroneous." Pollock, in a paper en- 
titled “The Science of Case Law,” written more 
than forty years ago, spoke of the freedom with 
which this was done, as suggesting that the law 
was nothing more than a matter of individual 
opinion.” Since then the tendency has, if any- 


thing, increased. An extreme illustration may be 


18 Gray, supra, sec. 462; Salmond, “Jurisprudence,” 
p. 164, sec. 64; Pound, “Juristic Science and the Law,” 
31 Harvard L. R. 1053; London Street Tramways Co. v. 
London County Council, 1898, A. C. 375, 379. 

19 Pollock, “First Book of Jurisprudence,” pp. 310, 
320; Gray, “Judicial Precedents,” 9 Harvard L. R. 27, 
40. 

20 “Essays in Jurisprudence and Ethics,” p. 245. 


158 





ADHERENCE TO PRECEDENT 


found in a recent decision of a federal court.” 
The plaintiff sued a manufacturer of automobiles 
to recover damages for personal injuries resulting 
from a defective car. On the first trial he had a 
verdict, which the Circuit Court of Appeals for 
_the second circuit reversed on the ground that 
the manufacturer owed no duty to the plaintiff, 
the occupant of the car, since the latter was not 
the original purchaser, but had bought from 
some one else.*? On a second trial, the judge, in 
obedience to this ruling, dismissed the complaint, 
and a writ of error brought the case before the 
same appellate court again. In the meantime, 
_ the New York Court of Appeals had held, in an 
action against another manufacturer, that there 
was a duty in such circumstances, irrespective 
of privity of contract.2* The federal court fol- 
lowed that decision, overruled its prior ruling, 
and reversed the judgment of dismissal which 
had been entered in compliance with its mandate. 
The defendant in that case who first reversed the 


21 Johnson v. Cadillac Motor Co., 261 Fed. Rep. 878. 
22 221 Fed. 8or. 
23 MacPherson v. Buick Mfg. Co., 217 N. Y. 382. 


159 


ADHERENCE TO PRECEDENT 


judgment because the complaint had not been 
dismissed, and then suffered a reversal because 
on the same evidence the complaint had been 
dismissed, probably has some views of his own 
about the nature of the judicial process. I do not 
attempt to say whether departure from the rule 
of adherence to precedent was justified in such 
conditions. One judge dissenting held the view 
that the earlier decision should have been applied 
as the law of the case irrespective of its correct- 
ness, like the rule of res adjudicata. The con- 
clusion of the majority of the court, whether 
right or wrong, is interesting as evidence of a 
spirit and a tendency to subordinate preceden : 
to justice. How to reconcile that tendency, which 
is a growing and in the main a wholesome one, 
with the need of uniformity and certainty, is | 
of the great problems confronting the lawyers 
and judges of our day. We shall have to feel 
our way here as elsewhere in the law. Some- 
where between worship of the past and exalta- 
tion of the present, the path of safety will be 
found. 


160 


ADHERENCE TO PRECEDENT 

Our survey of judicial methods teaches.us, I 
think, the lesson that the whole subject-matter 
of jurisprudence is more plastic, more malleable, 
right and wrong less preordained and constant, 
than most of us, without the aid of some such 
analysis, have been accustomed .to believe. We 
like to picture to ourselves the field of the law 
as accurately mapped and plotted. We draw our 
little lines, and they are hardly down before we 
blur them. As in time and space, so here. Divi- 
sions are working hypotheses, adopted for con- 
venience. We are tending more and more toward 
an appreciation of the truth that, afterall, there 
are few rules; there are. chiefly standards and 
degrees. It is a question of degree whether I have 
been negligent. It is a question of degree whether 
in the use of my own land, I have created a 
nuisance which may be abated by my neighbor. 
It is a question of degree whether the law which 
takes my property and limits my conduct, im- 
pairs my liberty unduly. So also the duty of a 
judge becomes itself a question of degree, and 


161 


ADHERENCE TO PRECEDENT 


he is a useful judge or a poor one as he 
estimates the measure accurately or loosely. He 
must balance all his ingredients, his philosophy, 
his logic, his analogies, his history, his customs, 
his sense of right, and all the rest, and adding 
a little here and taking out a little there, must 
determine, as wisely as he can, which weight shall 
tip the scales. If this seems a weak and incon- 
clusive summary, I am not sure that the fault 
is mine. I know he is a wise pharmacist who from! 
a recipe so general can compound a fitting 
remedy. But the like criticism may be made of 
most attempts to formulate the principles which 
regulate the practice of an art. W. Jethro Brown 
reminds us in a recent paper on “Law and Evolu- 
tion’’** that “Sir Joshua Reynolds’ book on 
painting, offers little or no guidance to those who 
wish to become famous painters. Books on 
literary styles are notoriously lacking, speaking 
as a rule, in practical utility.” After the weari- 
some process of analysis has been finished, there 
must be for every judge a new synthesis which 


#429 Yale L. J. 394, 397: 
162 


ADHERENCE TO PRECEDENT 

he will have to make for himself. The most that 

he can hope for is that with long thought and 
| study, with years of practice at the bar or on the 
bench, and with the aid of that inward grace 
which comes now and again to the elect of any 
- calling, the analysis may help a little to make 
the synthesis a true one. | 

In what I have said, I have thrown, perhaps 
too much, into the background and: the-shadow 
‘the cases where the controversy turns not upon 
the rule of law, but upon its application to the 
facts. Those cases, after all, make up. the bulk 
of the business of the courts. They are important 
for the litigants concerned in them. They .call 
for intelligence and patience and reasonable dis- 
cernment on the part of the judges. who. must 
decide them. But they leave jurisprudence where 
it stood before. As applied. to. such..cases,..the 
\judicial process, as was said at the outset.of these 
lectures, is a process of search and comparison, 
and little else. We have to distinguish between 
the precedents which are merely static, and those 


163 


ADHERENCE TO PRECEDENT 


which are dynamic.** Because the former out- 
number the latter many times, a sketch of the 
judicial process which concerns itself almost 
exclusively with the creative or dynamic ele- 
ment, is likely to give a false impression, an 
overcolored picture, of uncertainty in the law and 
of free discretion in the judge. Of the cases that 
come before the court in which I sit, a majority, 
I think, could not, with semblance of reason, be 
decided in any way but one. The law and _ its 
application alike are plain. Such cases..are.pre- 
destined, so.to speak, to.affirmance...without.. 
opinion. In another and considerable percentage, _ 
the rule of law is certain, andthe application 
alone doubtful. A complicated record must be 
dissected, the narratives of witnesses, more or 
less_ incoherent and unintelligible, must be 
analyzed, to determine whether a given situation 
comes within one district or another upon. the 
chart of rights and wrongs. The traveler who 
knows that a railroad crosses his path must look 
for approaching trains. That is at least the gen- 
25 Cf. Salmond, “Jurisprudence,” p. 160. 


164 


ADHERENCE TO PRECEDENT 
eral rule. In numberless litigations the descrip- 
tion of the landscape must be studied to see 
whether vision has been obstructed, whether 
something has been done or omitted to put the 


traveler off his guard. Often these cases and 


- others like them provoke difference of opinion 


among judges. Jurisprudence remains untouched, 
however, regardless of the outcome. Finally..there 
remains a percentage, not large indeed, and yet 
not so small as to be negligible, where a decision 
one way or the other, will count for the. future, 
will advance or retard, sometimes much,. some- 
times little, the development: of the law. ‘These 
are the cases where the creative element. in.the 
judicial process finds its opportunity and-power. 

It is with these cases that I have chiefly con- | 
cerned myself in all that I have said to you. In 
a sense it is true of many of them that they 
might be decided either way. By that I mean that 


reasons plausible and fairly persuasive might 


_ be found for one conclusion as for another. Here 


_ come into play that balancing of judgment, that 


_ testing and sorting of considerations of analogy 


Ss eS ee eee eer 


165 


ADHERENCE TO PRECEDENT 
and logic and utility and fairness, which I have 


been trying to describe..Here.it.is.that.the judge 
assumes the function of a lawgiver. T was much 
troubled in spirit, in my first years upon ‘the 
bench, to find how trackless ‘was the ocean on 
which I had embarked. M sought for certainty. I 
was oppressed and disheartened when I found 
that the quest for it was futile. I was trying to 
reach land, the solid land of fixed and settled 
rules, the paradise of a justice that would de- 
clare itself by tokens plainer and more command- 
ing than its pale and glimmering reflectionsin my 
own vacillating mind and conscience. I found 
“with the voyagers in Browning’s ‘Paracelsus’ 
that the real heaven was always beyond.’* As 
the years have gone by, and as I have reflected 
more and more upon the nature of the judicial 
process, I have become reconciled to the un- 
certainty, ‘because I have grown to see it as in- 
evitable. I have grown to see that the process in 
its highest reaches is not discovery, but creation; 

26 G, Lowes Dickinson, “Religion and Tmmovality.* 
p. 70°. 

166 


Se ee 


SUBCONSCIOUS FORCES 
and that the doubts and misgivings, the hopes 


and fears, are part of the travail of mind, the 
pangs of death and the pangs of birth, in which 
principles that have served their day expire, and 


new principles are born. 


I haye spoken of the forces of which judges“ 


avowedly avail to shape the form and content of 
their judgments. Even these forces are seldom 
fully in consciousness. They lie so near the sur- 
face, however, that their existence and influence 
are not likely to be disclaimed. But the subject 
is not exhausted with the recognition of their 
power. Deep below consciousness are other 
forces, the likes and the dislikes, the predilections 
and the prejudices, the complex of instincts and 
emotions and habits and convictions, which make 
the man, whether he be litigant or judge./I wish ~ 
I might have found the time and opportunity to 
pursue this subject farther. I shall be able, as it 
is, to do little more than remind you of its 


existence.27 There has been a certain lack of 


27 An interesting study of this subject will be found 
in a book published since these lectures were written, 


167 


SUBCONSCIOUS FORCES 
candor in much of the discussion of the theme, 
or rather perhaps in the refusal to discuss it, as _ 
if judges must lose respect and confidence by the 
reminder that they are subject to human limita- 
tions. I do not doubt the grandeur of the concep- 
tion which lifts them into the realm of pure rea- 
son, above and beyond the sweep of perturbing 
and deflecting forces. None the less, if there is 
anything of reality in my analysis of the judicial 
process, they do not stand aloof on these chill 
and distant heights; and we shall not help the 
cause of truth by acting and speaking as if they 
do. The great tides and currents which engulf 
the rest of men, do not turn aside in their course, 
and pass the judges by. We like to figure to 
‘;ourselves the processes of justice as coldly ob- 
jective and impersonal. The law, conceived of as 
a real existence, dwelling apart and alone, speaks, 
through the voices of priests and ministers, the 
words which they have no choice except to utter. 


That is an ideal of objective truth toward which 


“The Foundations of Social Science,” by James Mickel 
Williams, p. 209 et seq. 


168 


SUBCONSCIOUS FORCES 


every system of jurisprudence tends. It is an 
ideal of which great publicists and judges have 
spoken as of something possible to attain. "The 
judges of the nation,” says Montesquieu, ‘‘are 
only the mouths that_pronounce the words of 
the law, inanimate beings, who can moderate 
neither its force nor its rigor.”?® So Marshal, i in 
Osborne v. Bank of the United States, 9g Wheat. 
738, 866: The judicial department “has no will 


in any case. . . . Judicial power is never exercised }. 


for the purpose of giving effect to the will of the 
judge; always for the purpose of giving effect to 
the will of the legislature; or in other words, to 
the will of the law.” It has a lofty sound; it is 
well and finely said; but it can never be more 
than partly true. Marshall’s own career is a 
conspicuous illustration of the fact that the ideal 
is beyond the reach of human faculties to attain. 
He gave to the constitution of the United States 
the impress of his own mind; and the form of 

28 Montesquieu, “Esprit des Lois,” LIV, XI, chap. VI, 


quoted by Ehrlich, “Die juristische Logik,” p. ror; 
Gény, op. cit., p. 76; cf. Flavius, supra, p. 40. 


169 


SUBCONSCIOUS FORCES 
our constitutional law is what it is, because he 
moulded it while it was still plastic and malle- 
able in the fire of his own intense convictions. 
At the opposite extreme are the words of the 
French jurist, Saleilles, in his treatise “De la 
Personnalité Juridique”:°° one wills at the be- 
ginning the result; one finds the principle after; 
wards; such is the genesis of all juridical con- 
struction. Once accepted, the construction pre- 
sents itself, doubtless, in the ensemble of legal 
doctrine, under the opposite aspect. The factors 
are inverted. The principle appears as an initial 
cause, from which one has drawn the result 
which is found deduced from it.” I would not 
put the case thus broadly. So sweeping a state- 
ment exaggerates the element of free volition. It 
ignores the factors of determinism which cabin 
and confine within narrow bounds the range 
of unfettered choice. None the less, by its very 
excess of emphasis, it supplies the needed cor-. 
rective of an ideal of impossible objectivity. 
Nearer to the truth, and midway between these 


29 Pp. 45, 46. 
170 


SUBCONSCIOUS FORCES 


extremes, are the words of a man who was not a 
jurist, but whose intuitions and perceptions were 
deep and brilliant—the words of President 
Roosevelt in his message of December 8, 1908, 
to the Congress of the United States:*°° “The ~ 
chief lawmakers in our country may be, and 
often are, the judges, because they are .the final 
seat of authority. Every time they interpret con- 
tract, property, vested rights, due process of law, 
liberty, they necessarily enact into law parts of 
a system of social philosophy; and as.such in- 
terpretation is fundamental, they give direction 
to all law-making. The decisions of the courts on 
economic and social questions depend upon their 
economic and social philosophy; and for the 
peaceful progress of our people during the 
twentieth century we shall owe most to those 
judges who hold to a twentieth century economic 
and social philosophy and not to a long outgrown 
philosophy, which was itself the product of 
primitive economic conditions.” 


I remember that this statement when made, 





30 43 Congressional Record, part 1, p. 21. 


171 


SUBCONSCIOUS FORCES 


aroused a storm of criticism. It betrayed igno- 
rance, they said, of the nature of the judicial 
process. The business of the judge, they told us, 
was to discover objective truth. His own little 
individuality, his tiny stock of scattered and 
unco-ordinated philosophies, these, with all his 
weaknesses and unconscious prejudices, were to 
be laid aside and forgotten. What did men care 
for his reading of the eternal verities? It was 
not worth recording. What the world was seek- 
ing, was the eternal verities themselves. Far am 
I from denying that this is, indeed, the goal 
toward which all of us must strive. Something of 
Pascal’s spirit of self-search and self-reproach 
must come at moments to the man who finds 
himself summoned to the duty of shaping the 
progress of the law. The very breadth and scope 
of the opportunity to give expression to his 
finer self, seem to point the accusing finger of 
disparagement and scorn. What am I that in 
these great movements onward, this rush and 
sweep of forces, my petty personality should de- 
flect them by a hairbreadth? Why should the 


172 


SUBCONSCIOUS FORCES 
pure light of truth be broken up and impregnated 
and colored with any element of my being? 
Such doubts and hesitations besiege one now 
and again. The truth is, however, that all these 
inward questionings are born of the hope and 
desire to transcend the limitations which hedge 
our human nature. Roosevelt, who knew men, 
had no illusions on this score. He was not positing 
an ideal. He was not fixing a goal. He was 
measuring the powers and the endurance of those 
by whom the race was to be run. My duty as 
judge may be to objectify in law, not my own 
aspirations and convictions and philosophies, but 
the aspirations and convictions and philosophies 
of the men and women of my time. Hardly shall 
I do this well if my own sympathies and beliefs 
and passionate devotions are with a time that is 
past. “‘We shall never be able to flatter ourselves, 
in any system of judicial interpretat* 
have eliminated altogether *’ 
of the interpreter. In - 


is no method or - 














SUBCONSCIOUS FORCES 


plants subjective reason.’*t We may figure the 
task of the judge, if we please, as the task of a 
translator, the reading of signs and symbols 
given from without. None the less, we will not 
set men to such a task, unless they have absorbed 
the spirit, and have filled themselves with a love, 
of the language they must read. 

I have no quarrel, therefore, with the doctrine 
that judges ought to be in sympathy with the 
spirit of their times. Alas! assent to such a 
generality does not carry us far upon the road 
to truth. In every court there are likely to be 
as many estimates of the “Zeitgeist” as there 
are judges on its bench. Of the power of favor or 
prejudice in any sordid or vulgar or evil sense, 
I have found no trace, not even the faintest, 
among the judges whom I have known. But every 
day there is borne in on me a new conviction of 
the inescapable relation between the truth with- 
the truth within. The spirit of the age, 


ach of us, is too often only 


. 03, S6ClVESOs wor. dia 
waa 


SUBCONSCIOUS FORCES 


the spirit of the group in which the accidents of 
birth or education or occupation or fellowship 
have given us a place. No effort or revolution 
of the mind will overthrow utterly and at all 
times the empire of these subconscious loyalties. 
“Our beliefs and opinions,” says James Harvey 
Robinson,*? “like our standards of conduct come 


to us insensibly as products of our companion- 


ship with our fellow men, not as results of our | 


personal experience and the inferences we in- 


_ dividually make from our own observations. We» _ 


are constantly misled by our extraordinary fac- 
ulty of ‘rationalizing’—that is, of devising plausi- 


ble arguments for accepting what is imposed upon 


us by the traditions of the group to which we be-_ 


long. Weareabjectly credulous by nature, and in- 
stinctively accept the verdicts of the group. We 
are suggestible not merely when 1 under the spell 
of an excited mob or a fervent revival, but we are 
ever and always listening to the still small voice 
of the herd, and are ever ready to defend and 

32 “The Still Smail Voice of the Herd,” 32 Political 
Science Quarterly 315. 

175 


SUBCONSCIOUS FORCES 


justify its instructions and warnings, and accept 
them as the mature results of our own reason- 
ing.” This was written, not of judges specially, 
but of men and women of all classes. The train- 
ing of the judge, if coupled with what is styled 
_ the judicial temperament, will help in some 
_ degree to emancipate him from the suggestive 
| power of individual dislikes and prepossessions. 
It will help to broaden the group to. which his 
subconscious loyalties are due. Never will. these 
loyalties be. utterly...extinguished... while. human 
nature is what. it-is. We may wonder sometimes. 
how from the play of all these forces of individ- 
ualism, there can come.anything. coherent, any- 
thing but chaos and the void. Those are the 
moments in which we exaggerate the elements of 
difference. In the end there emerges something 
which has a composite shape and truth and order. 
It has been said that ‘‘History, like mathematics, 
is obliged to assume that eccentricities more or 
less balance each other, so that something re- 
mains constant at last.”** The like is true of the 


83 Henry Adams, “The Degradation of the Demo- | 
cractic Dogma,” pp. 291, 292. 
176 


SUBCONSCIOUS FORCES 


work of courts. The eccentricities of judges 
balance one another. ‘One judge looks at prob-; 
lems from the point of view of history, another 
from that of philosophy, another from that of 
social utility, one is a formalist, another a 
latitudinarian, one is timorous of change, an- 
other dissatisfied with the present; out of the 
attrition of diverse minds there is beaten some- 
thing which has a constancy and uniformity and 
average value greater than its component ele- 
ments. The same thing is true of the work of 
juries. I do not mean to suggest that the product 
in either case does not betray the flaws inherent 
in its origin. The flaws are there as in every 
human institution. Because they are not only 
there but visible, we have faith that they will 
be corrected. There is no assurance that the 
rule of the majority will be the expression of 
perfect reason when embodied in constitution or 
in statute. We ought not to expect more of it 
when embodied in the judgments of the courts. 
The tide rises and falls, but the sands of error 


crumble. 


177 


9 


CONCLUSION 


The work of a judge is in one sense enduring 
and in another sense ephemeral. What is good 
in it endures. What is erroneous is pretty sure 
to perish. The good remains the foundation on 
which new structures will be built. The bad will 
be rejected and cast off in the laboratory of the 
years. Little by little the old doctrine is under- 
mined. Often the encroachments are so gradual 
that their significance is at first obscured. Finally 
we discover that the contour of the landscape has 
been changed, that the old maps must be cast 
aside, and the ground charted anew. The process, 
with all its silent yet inevitable power, has been 
described by Mr. Henderson with singular 
felicity:** ‘““When an adherent of a systematic 
faith is brought continuously in touch with in- 
fluences and exposed to desires inconsistent with 
that faith, a process of unconscious cerebration 
may take place, by which a growing store of 


hostile mental inclinations may accumulate, 


84“Foreign Corporations in American Constitutional 
Law,” p. 164; cf. Powell, “The Changing Law of 
Foreign Corporations,’ 33 Pol. Science Quarterly, p. 
569. 


178 


CONCLUSION 


strongly motivating action and decision, but 
seldom emerging clearly into consciousness. In 
the meantime the formulas of the old faith are 
retained and repeated by force of habit, until 
one day the realization comes that conduct and 
sympathies and fundamental desires have be- 
‘come so inconsistent with the logical framework 
that it must be discarded. Then begins the task 
of building up and rationalizing a new faith.” 

Ever in the making, as law develops through 
the centuries, is this new faith which silently 
and steadily effaces our mistakes and eccen- 
tricities. I sometimes think that we worry our- 
selves overmuch about the enduring consequences, 
of our errors. They may work a little confusion 
for a time.’In the end, they will be modified or 
corrected or their teachings ignored. The future 
takes care of such things. In the endless process 
of testing and retesting, there is a constant re- 
jection of the dross, and a constant retention of 
whatever is pure and sound and fine. 

The future, gentlemen, is yours. We have been 


called to do our parts in an ageless process. Long 


179 


CONCLUSION 


after I am dead and gone, and my little part in 
it is forgotten, you will be here to do your share, 
and to carry the torch forward. I know that the 
flame ill burn pont ee 


eels 


your keeping. 


180 


Ur tt ee RL ARS BO 
Oy ie ae ee ea 
set Pe WG . Poth. 


. 


























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